Opinion
1-21-0418
11-09-2021
In re IB., J.B., D.L., T.C., and LP., Minors, The People of the State of Illinois, Petitioner-Appellee, T.P., Respondent-Appellant.
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 Cook County. Nos. 20 JA 870 20 JA 871 20 JA 872 20 JA 873 20 JA 874, Honorable Patrick T. Murphy Judge, presiding.
COBBS JUSTICE delivered the judgment of the court. Justices Howse and Lavin concurred in the judgment.
ORDER
COBBS JUSTICE.
¶ 1 Held: The trial court's adjudication order is affirmed where the court's comments regarding the respondent-mother's absence from the adjudication hearing did not constitute plain error and the ruling was not against the manifest of the evidence.
¶ 2 Respondent T.P. is the biological mother of five minors, I.B., J.B., D.L., L.P., and T.C.
¶ 3 Following an adjudicatory hearing on March 17, 2021, the circuit court found the minors to be abused and neglected pursuant to the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3 (West 2020)). Two of the minors were placed in the custod of their biological father and three of the minors were made wards of the court. On appeal, respondent requests that the adjudication order be vacated, arguing that the trial court was unduly influenced by respondent's absence from the hearing and the court's comments suggested that the court improperly shifted the burden of proof from the State to respondent. For the following reasons, we affirm.
¶ 4 I. BACKGROUND
¶ 5 Respondent is the mother of the minors, I.B. (born March 18, 2019), J.B. (born July 23, 2016), D.L. (born July 27, 2013), T.C. (born December 26, 2005), and L.P. (born June 27, 2004). L.B. is the biological father of I.B. and J.B.; N.L. is the biological father of D.L.; and L.C. is the biological father of T.C. and L.P.
In the circuit court, these minors' cases were consolidated with the cases of two additional minors (M.B. and G.B.), who are also the children of L.B., but not of respondent (case nos. 20 JA 869, 20 J A 868). Those minors' cases are not at issue in this appeal.
¶ 6 On June 5, 2020, the State filed petitions for adjudication of wardship for each of the five minors, alleging abuse and neglect, due to domestic violence in the household. The State alleged the following facts in support of its petitions:
Although the State filed separate petitions for each of the minors, each petition contained identical facts.
"Mother has two prior indicated reports for environmental neglect and substantial risk of physical injury/environment injurious to health and welfare by neglect. Putative father has three prior indicated reports for environmental neglect; cuts, welts and bruises; and substantial risk of physical injury/environment injurious to health and welfare by
neglect. Putative father hits one of his other children who also lives in the home. Mother and putative father have a history of domestic violence; this minor and other minors residing in the home report physical violence between the mother and putative father. In February 2020, putative father stomped on mother's leg repeatedly. The mother reported leaving the home of the putative father and getting a restraining order, but he reports still living with the mother, and the involved children report he continues to visit often. In April 2020, putative father pulled out some of the mother's hair. The putative father was arrested, and domestic battery charges are pending. Mother minimizes the domestic violence and admits that she did not engage in previously offered domestic violence services. Putative father denies any domestic violence and refuses to engage in domestic violence services. On or about May 27, 2020, mother and putative father refused to allow [the Department of Children and Family Services (DCFS)] into the home to enact an out of home safety plan."
¶ 7 On the State's motion, the court entered temporary custody orders for each minor. T.C. and L.P. were placed in the custody of their father, and the other minors were placed in the temporary custody of the DCFS guardianship administrator.
¶ 8 An adjudicatory hearing was held on March 17, 2021. At the hearing, the attorneys present acknowledged for the record who they represented and whether those individuals were present. Counsel for respondent stated that respondent was not present. Counsel for L.B. stated that L.B. was not present. The fathers of the other minors were present.
Pursuant to M.R. 30370, to retard the spread of the COVID-19 virus, the supreme court has mandated that certain hearings in Illinois circuit courts, such as this one, may be conducted via video conference.
¶ 9 The State first entered into evidence a misdemeanor complaint against L.B., signed by respondent and dated April 12, 2020. The complaint alleged that L.B. committed domestic battery in the form grabbing and pulling out respondent's hair. The State also introduced a court order from the same day prohibiting L.B. from contacting respondent or entering her home, work, or school.
¶ 10 DCFS investigator Kevestiana Martin testified that she was assigned to investigate the subject minors in November 2019. As a part of that investigation, she spoke with G.B., one of L.B.'s sons not involved in this appeal, at Hartgrove Behavioral Hospital. G.B. stated that L.B. "beats" respondent. In December 2019, Martin went to the home located on the 5000 block of South Peoria Street, where she spoke with T.C. who would have been approximately 14 years old at that time. T.C. told Martin that L.B. physically fights with respondent as well as with L.B.'s minor sons, G.B. and M.B. Martin also spoke with J.B., who was about three or four years old at the time. J.B. stated that she saw her father, L.B., "fight" her brothers, G.B. and M.B.
¶ 11 In January 2020, Martin spoke via telephone with respondent, who admitted that there was domestic violence in the home. In particular, respondent stated that L.B. has "jumped on her" multiple times, the children were often present during these physical altercations, and she wanted to leave L.B. but did not have anywhere to go. In February 2020, respondent contacted Martin via telephone. Respondent was "crying hysterically and kind of out of breath," and stated that L.B. had "beat" her in front of their two children, I.B. and J.B. She further stated that L.B. stomped on her legs to the point where she could not walk or move. Martin called the police and directed them to respondent's address.
¶ 12 In April 2020, Martin spoke for a third time with respondent, who informed her that she no longer lived with L.B. and that she had moved into her own home on South Throop Street. Respondent also stated that she was still trying to work things out with L.B. and that "every relationship goes through like ups and downs, every couple fights." Martin informed respondent that such relationships are not healthy for the children. In response, respondent offered that her stepfather broke her mother's arm and that fighting was "normal." Martin again told respondent that it was not normal, and it was not healthy for children to watch domestic violence in the home. In May 2020, Martin had a conversation with L.B., in which L.B. confirmed that he and respondent were still in a relationship and that the two continued to reside together.
¶ 13 Later that month, Martin and her coworker, Natalie Castro, visited the Throop Street home. There, Martin spoke again with T.C., who, by that time, would have been about 15 years old. T.C. confirmed that L.B. was currently living in the home. T.C. also confirmed that she had recently seen respondent with a black eye. T.C. additionally told Martin that she did not feel safe in the home and did not want to live there. She stated that she was often left to take care of her younger siblings. On that same day, Martin also spoke with L.P., who was 16 years old at the time. L.P. stated that he had not observed L.B. fighting respondent but he does not like L.B.
¶ 14 Martin also spoke with L.B. that day. Martin testified that L.B. was "very aggressive" and expressed that he would not complete any domestic violence services because he does not physically abuse women. Martin told him that she was trying to create a safety plan but L.B. continued to act aggressively and she was concerned that he was going to attack her.
¶ 15 Martin had a phone conversation with respondent a couple days later. During the conversation, respondent again expressed that the violence in her relationship with L.B. was normal and she did not follow up with domestic violence services that were provided to her in February 2020.
¶ 16 Martin testified that during her investigation, she discovered that respondent had previous reports regarding environmental neglect and substantial risk of harm for L.C., T.C., and D.L. She also found that L.B. had previous reports for substantial risk of harm based on allegations of cuts, welts, and bruises on G.B. and M.B.
¶ 17 Following the hearing, the trial court entered identical adjudication orders for the minors, finding that each was abused or neglected due to conduct involving an injurious environment (705 ILCS 405/2-3(1)(b) (West 2020)) and substantial risk of physical injury (705 ILCS 405/2-3(2)(ii) (West 2020)) and that the abuse or neglect was inflicted by respondent. Specifically, the order stated that the evidence is "overwhelming via case manager Kevestiana Martin, who is an excellent and credible witness relating to domestic violence between [respondent and L.B.]." In its oral ruling, the court stated the following:
"Okay. This is a very chaotic case. I have to find by a preponderance. I also note that neither of the parents who are the focus of this thought enough to appear in court, thought enough to come in and testify in their defense, and they had every opportunity to do so. Also, of course, by not appearing, no one could call them as witnesses on any side, and I take that very seriously.
It seems if there are parents who [are] involved with the children, the first thing they ought to do is to come to court say hey, this didn't happen, I love my kids, I want them back. But they are not here. And the only two parents that are here are fathers who basically were not involved with the situation. The mother for two of the children didn't think enough to come, and [L.B.] and [respondent] didn't think enough to come. And the evidence is overwhelming. Ms. Martin is an excellent witness and a credible witness.
So based on her testimony, I [am] making findings both of [neglect based on injurious environment] and [abuse based on substantial risk of injury]."
¶ 18 A dispositional hearing followed immediately. Although respondent does not claim error occurred at the dispositional hearing, we briefly summarize those proceedings. For purposes of the dispositional hearing, the trial court took judicial notice of the findings and evidence presented at the adjudicatory hearing. The State entered several exhibits into the record. Exhibits A and B consisted of two letters from Dr. Katie Washington Cole from the University of Chicago Medical Center, regarding L.B.'s treatment after suffering multiple gunshot wounds and his diagnoses of post traumatic stress disorder and attention deficit/hyperactivity disorder. Exhibit C was a case transfer letter related to respondent and her reunification services. Exhibit D was the DCFS family service plan dated November 25, 2020. Exhibit E was the DCFS integrated assessment for the five subject minors.
¶ 19 Estephany Alencastro, a Volunteers of America caseworker for respondent's children, testified that she was assigned to the cases of the five subject minors in December 2020. Alencastro testified that I.B., J.B., and D.L. were residing with their maternal grandmother, and that DCFS would like to see D.L. reunified with his father, N.L., in the future. With respect to L.P. and T.C., DCFS was recommending that they remain with their father, L.C. Respondent was taking parenting classes and was starting individual therapy. She also was continuing supervised visits with the minors.
¶ 20 During the hearing, L.B. appeared via video conference and informed the court that respondent had an asthma attack that morning and had been taken to the hospital.
¶ 21 At the conclusion of the dispositional hearing, the court entered an order making the minors wards of the court and giving the agency the right to place the minors.
¶ 22 This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 On appeal, respondent requests that the adjudication order be vacated, arguing that the trial court (1) was unduly influenced by respondent's absence from the adjudicatory hearing and (2) the court's comments regarding the absence suggest that it inappropriately shifted the burden of proof from the State to respondent. The State concedes that the court's comments were improper but argues that any resulting error should be deemed harmless because the evidence would have produced the same result even absent error. The public guardian makes a similar argument but stops short of conceding error. Significantly, a party's concession does not preclude our review. See Beacham v. Walker, 231 Ill.2d 51, 60 (2008) (a reviewing court is not bound by a party's concession).
¶ 25 Prior to proceeding, we set forth those principles which inform our review. A proceeding for adjudication of wardship" 'represents a significant intrusion into the sanctify of the family and should not be undertaken lightly.'" In re Arthur H., 212 Ill.2d 441, 464 (2004) (quoting In re Harpmon, 134 Ill.App.3d 393, 396-97 (1985)). "In any proceeding initiated pursuant to the Juvenile Court Act of 1987, including an adjudication of wardship, the 'paramount consideration' is the best interest of the child." In re N.B., 191 Ill.2d 338, 343 (2000) (quoting In re KG., 288 Ill.App.3d 728, 734-35 (1997)). It is the State's burden to prove allegations of neglect by a preponderance of the evidence. Id. In other words, the State must show that the alleged neglect is more probably true than not. In re M.H. 196 Ill.2d 356, 365 (2001). Absent such proof, a petition seeking adjudication of wardship must be dismissed. In re Arthur H., 212 Ill.2d at 464 (2004).
¶ 26 Our review of a trial court's ruling of abuse or neglect will not be reversed unless it is against the manifest weight of the evidence. See In re Chelsea H., 2016 IL App (1st) 150560, ¶ 62; see also In re M.Z., 294 Il. App. 3d 581, 592 (1988). 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).
¶ 27 Preliminarily we must determine whether respondent has waived her claims. "To preserve an issue for appellate review, a party must, even in child custody cases, object at trial and file a written posttrial motion addressing it." Matter of Chance H., 2019 IL App (1st) 180053, ¶ 45. Typically, failure to do so results in waiver of that issue on appeal. People v. Enoch, 122 Ill.2d 176, 186 (1988). Here, respondent concedes that because her counsel did not object to the court's statements in making its finding, the issue has been waived. Citing People v. Davis, 378 Ill.App.3d 1 (2007), respondent initially comments that the waiver rule is relaxed where the trial judge's own conduct is at issue. Then, without more, she proceeds to assert that as no objection was made, "the standard of review is plain error."
¶ 28 The relaxed waiver rule about which respondent commented is referred to as the "Sprinkle doctrine." Under that doctrine, "[a]pplication of the waiver rule *** is less rigid where the basis for the objection is the [trial] judge's conduct." People v. Davis, 185 Ill.2d 317, 343 (1998). The rationale for the doctrine is based on the difficulty and concerns a trial lawyer may have in objecting to a judge's questions or comments. People v. Sprinkle, 27 Ill.2d 398, 400 (1963). Although the Sprinkle court was "primarily concerned with the risk of alienating the jury by appearing disrespectful of the court's authority," our supreme court has extended application of the doctrine to cases in which no jury is present. People v. McLaurin, 235 Ill.2d 478, 487-88 (2009).
¶ 29 Nonetheless, we find the doctrine inapplicable in the case before us for two reasons. First, the McLaurin court made clear that relaxation of the waiver rule is only warranted in "extraordinary circumstances, such as when a trial judge makes inappropriate remarks to a jury [citation] or relies on social commentary, rather than evidence, in sentencing a defendant to death [citation]." McLaurin, 235 Ill.2d at 488. This is simply not one of those extraordinary cases. Moreover, nothing in the record suggests that an objection from respondent's counsel "would have fallen on deaf ears." Davis, 378 Ill.App.3d at 10.
¶ 30 Second, we are aware of no civil cases that have actually applied the Sprinkle doctrine. Our research has, however, revealed a single case involving the termination of parental rights that rejects application of the Sprinkle doctrine because there was no jury involved and the court's comments did not permeate the entire trial. In re J.V., 2018 IL App (1st) 171766, ¶¶ 207-08. At any rate, we can find no caselaw clearly stating that the Sprinkle doctrine is applicable in all types of proceedings, not just criminal. That being the case, and considering the paucity of respondent's argument in support, we find no basis to further consider application of the doctrine here. We therefore resume consideration of respondent's request for review of her claimed errors under the plain error doctrine.
¶ 31 The State contends that application of the plain error doctrine is not authorized in a civil case such as this one. We disagree. This court has previously stated that "[w]hile the plain error doctrine is most commonly applied to criminal proceedings, a parent's right to raise his or her biological child is a fundamental liberty interest, and rulings affecting that right may be reviewed for plain error." Matter of Chance H., 2019 IL App (1st) 180053, ¶ 47; see also In re M.W., 232 Ill.2d 408, 431 (2009) (applying the plain error doctrine to proceedings under the Act); In re A.S., 2020 IL App (1st) 200560, ¶ 24 (same).
¶ 32 Having determined that a plain error analysis is appropriate, we return to our consideration of its availability to respondent on the facts before us. "Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." Ill. S.Ct. R. 615(a) (eff. Jan. 1, 1967). The first step in conducting a plain error analysis is to determine whether any error occurred at all. In re M.W., 232 Ill.2d 408, 431 (2009) (citing People v. Piatkowski, 225 Ill.2d 551, 565, n. 2 (2007)). Obviously, where there is no error, there can be no plain error. Id. In addition, an error will not be" 'noticed'" under Rule 615(a) unless it is 'clear or obvious.'" Id. If, however, such an error is found, a reviewing court will grant relief if the complaining party can establish that either: "the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the [complaining party]" or the error is "so serious that it affected the fairness of the [complaining party's] trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." Piatkowski, 225 Ill.2d at 565. The complaining party has the burden of demonstrating an error occurred and that relief should be granted as a result of the unpreserved error. In re M.W., 232 Ill.2d at 431.
The public guardian argues that "a harmless error analysis is appropriate and the record shows that the trial court's comments were harmless." Although plain error and harmless error analyses have some similarities, they should not be conflated, as they are separate doctrines that apply under different circumstances. Harmless error analysis applies when a defendant has objected to the error, whereas plain error review only applies when a defendant has not objected to the error. People v. Thompson, 238 Ill.2d 598, 611 (2010). Because respondent did not preserve the error through a contemporaneous objection or posthearing motion, harmless error analysis is not applicable here.
¶ 33 We must first determine whether a "clear or obvious" error occurred. Respondent first contends that the court was "unduly influenced by respondent's absence from the adjudicatory hearing, from which it "drew negative inferences." She maintains that much of the court's remarks in its ruling related to her absence, a circumstance from which the court inferred a lack of interest and responsibility. Respondent argues that the court's posture concerning her absence might have contributed to the adverse findings. She maintains that even if it was permissible for the court to proceed in respondent's absence, it was not permissible for the court to assume, without any information, that her absence was due to disinterest or irresponsibility and to hold it against her so strongly. Simply framed, respondent argues that the trial court was biased in its ruling.
¶ 34 "Trial judges are presumed to be fair and impartial." Lesher v. Trent, 407 Ill.App.3d 1170, 1176 (2011). Thus, a party alleging judicial bias must, in the first instance, overcome that presumption. Lesher, 407 Ill.App.3d at 1176 (citing Eychaner v. Gross, 202 Ill.2d 228, 280 (2002)). Generally, adverse rulings standing alone are not adequate to support a claim of judicial bias, even if those rulings are alleged to be erroneous. Id. A party claiming bias must show either a personal bias stemming from some source other than the litigation (Eychaner, 202 Ill.2d at 280) or comments made during the proceedings that" 'reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.'" Eychaner, 202 Ill.2d at 281 (quoting Liteky v. United States, 520 U.S. 540, 555 (1994)).
¶ 35 Much of the caselaw addressing trial judge bias is in the context of criminal proceedings. Respondent cites to no caselaw, criminal, civil, or otherwise, to support her claim, which of course violates Illinois Supreme Court Rule 341. See Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (an appellant's brief must contain contentions and the reasons therefor, with citation to the authorities upon which the appellant relies). In any case, we believe that the consideration and principles espoused in criminal cases on this issue apply in equal measure to non-criminal matters. In the context of a jury trial, an evaluation of the effect of the trial court's comments "must be made in the light of the evidence, the context in which they were made and the circumstances surrounding the trial." People v. Williams, 209 Ill.App.3d 709, 719 (1991). Although a trial judge has broad discretion in the conduct of a trial, the judge "must not interject opinions or comments reflecting prejudice against or favor toward any party." Williams, 209 Ill.App.3d at 718.
¶ 36 In order for a trial judge's comments to constitute reversible error, the complaining party must demonstrate that the remarks were prejudicial and that he or she was harmed by them. Id. at 718. "Where it appears that the comments do not constitute a material factor in the conviction, or that prejudice to the defendant is not the probable result, the verdict will not be disturbed." Id. at 718-19; People v. Lopez, 2012 IL App (1st) 101395, ¶ 57. Thus, remarks that are improper may also be harmless error. Williams, 209 Ill.App.3d at 719.
¶ 37 Respondent would have us notice only those comments the court made concerning respondent's absence. A review of the trial court's comments, in their entirety, included statements regarding the evidence presented at the hearing. Although clearly the court voiced its disapproval regarding the absent respondent, nothing in the comments suggests to us that those comments formed the basis of the court's ruling. In its oral statement, after commenting on respondent's absence, the court stated that its findings were based on Martin's testimony. In fact, as we point out later, the court's written ruling makes clear that its findings were based largely on Martin's credible testimony.
¶ 38 Respondent argues that the trial court considered evidence outside the record, that was indirect or inferred, that being that respondent's motive in failing to appear was an indication of irresponsibility and lack of care or interest. Extracting the principle of law pronounced in People v. Wallenberg, 24 Ill.2d 350, 354 (1962), respondent argues that the trial court's deliberations are limited to the record made before it during the course of trial.
¶ 39 We decline to find that the trial court's notice and disapproving comments regarding respondent's absence during the proceedings amounted to consideration of evidence outside the record. Clear from the court's final comments, as well as its written ruling, the court's final disposition was based upon testimony elicited from the witnesses during the adjudicatory hearing. Incidentally, we do not read Wallenberg as a bar to the trial court expressing its observations concerning the conduct of the parties. The challenged conduct in Wallenberg was the trial judge's reliance on his personal knowledge of the existence of a gas station on a street about which the defendant had testified to determine the defendant's credibility concerning the same. Wallenberg, 24 Ill.2d at 353-54.
¶ 40 Subsumed within the presumption that the trial court properly applies the law is the presumption that, absent an affirmative showing on the record, the trial court relied only on proper evidence in reaching its conclusion and disregarded inadmissible evidence. People v. Brumley, 229 Ill.App.3d 16, 19 (1992); In re C.C., 224 Ill.App.3d 207, 217 (1991). Additionally, the Act provides that following an adjudication hearing," [t]he court's determination of whether the minor is abused, neglected, or dependent shall be stated in writing with the factual basis supporting that determination." 705 ILCS 405/2-21(1) (West 2020). Here, the court's adjudication orders for each minor stated that the evidence of abuse and neglect was "overwhelming via case manager Kevestiana Martin, who is an excellent and credible witness relating to domestic violence between [respondent and L.B.]." Notably, the court did not reference respondent's absence from the hearing in the written order. Thus, we must presume that the court did not consider her absence or any negative inference therefrom as part of the factual basis for its conclusion. At most, the court made extraneous remarks, although ill-advised, regarding respondent's absence without knowing the precise reason for her absence. The court's comments regarding the respondent's absence, standing alone, could perhaps support respondent's claim. However, in light of Martin's testimony, in addition to the misdemeanor complaint, which was initiated by respondent, we find that the court's remarks did not color its conclusion. Simply put, in light of the evidence, neither respondent's absence, nor the courts speculation concerning the reason, were a material factor in the court's decision. Thus, we find no clear or obvious error in the court's comments.
¶ 41 We find similarly with respect to respondent's argument that the court's remarks indicate an improper shifting of the burden of proof. Respondent argues that the court "weighed against them" that respondent did not appear to offer testimony contrary to that offered by the State.
¶ 42 The entirety of respondent's argument regarding a shifting of the burden of proof rests on her assertion that the court's unfavorable ruling was based on her absence. First, even accepting that the court weighed respondent's absence against her and placed her in a bad light, it does not necessarily follow that the State was thereby relieved of satisfying its burden of proof. Read in context, we view the court's comments as noting the respondent's missed opportunity to offer evidence to rebut the State's evidence.
¶ 43 That said, we note that respondent's burden shifting argument, which spans a mere three sentences in length, is not supported either by the record or by citation to caselaw. Thus, we deem the argument forfeited. See Illinois Supreme Court Rule 341(h)(7) (eff. October 1, 2020) (an appellant's brief must contain contentions and the reasons therefor, with citation to the authorities upon which the appellant relies). We have oft commented that this court is not a depository into which a party may dump the burden of argument and research. In re Marriage of Petrik, 2012 IL App (2d) 110495, ¶ 38. "Contentions supported by some argument but by absolutely no authority do not satisfy the express requirements of Rule 341(h)(7)." Palm v. 2800 Lake Shore Drive Condominium Ass'n., 401 Ill.App.3d 868, 881-82 (2010).
¶ 44 Furthermore, in its comments, the trial court indicated that the burden of proof was by a preponderance of the evidence. Although the court did not expressly state that it was the State's burden, we must presume that the trial court understands the law and applies it properly, unless there is strong affirmative evidence in the record to rebut that presumption. People v. Howery, 178 Ill.2d 1, 32 (1997). Here, respondent points to none. On this record, respondent's burden shifting argument must fail. Thus, we find no clear or obvious error as it relates to the allocation of the burden of proof.
¶ 45 Having determined that no clear or obvious error occurred, we must honor the procedural bar. As respondent failed to preserve her arguments in the trial court, we deem the issues to have been waived. Waiver aside, we find that the court's ruling was not against the manifest weight of the evidence.
¶ 46 "[C] ases involving allegations of neglect and adjudication of wardship are sui generis and must be decided on the basis of their unique circumstances." In re Arthur H., 212 Ill.2d 441, 463 (2004). In the instant case, the minors were found to be abused and neglected due to an injurious environment and a substantial risk of injury. 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 2020); In re Arthur H., 212 Ill.2d at 462. An "injurious environment" has been interpreted to include the breach of a parent's duty to ensure a safe and nurturing shelter for her children. In re Kenneth D., 364 Ill.App.3d 797, 801 (2006); In re Arthur H., 212 Ill.2d at 463. A court may find neglect regardless of whether there was a willful or unintentional disregard of parental duty. In re K.T., 361 Ill.App.3d 187, 200 (2005). An "abused minor" includes any minor under 18 years old whose parent intentionally creates a substantial risk of physical injury which would be likely to cause death, disfigurement, impairment of emotional health, or loss or impairment of any bodily function. 705 ILCS 405/2-3(2)(ii) (West 2020). The same facts and evidence that supports a finding of neglect due to injurious environment may also support a finding of abuse due to substantial risk of injury. In re Tamesha T., 2014 IL App (1st) 132986, ¶ 44.
¶ 47 Based on our review of the record, there was substantial testimony as to the domestic violence in the household and almost none to the contrary." [I]t is not unreasonable for a trial judge to conclude continuing physical abuse by one parent to another will cause emotional damage to a child and thus constitute neglect." In the interest of A.D.R., 186 Ill.App.3d 386, 393 (1989); see also In re P.S., 2021 IL App (2d) 210114-U, ¶ 31 (several instances of domestic violence provided sufficient evidence to support a finding of an injurious environment); In re T.S-P., 362 Ill.App.3d 243, 249 (2005) (evidence of domestic violence, in addition to mental health problems and drug use, supported finding of neglect based on an injurious environment).
¶ 48 Here, Martin's testimony was to the effect that between November 2019 and May 2020 there were multiple incidents of physical violence between respondent and L.B., and on some occasions, in the presence of one or more of the subject minors. Cf. In re S.S., 313 Ill.App.3d 121, 130 (finding that the evidence of domestic violence was insufficient to support a neglect finding where there was only one documented incident of domestic violence and there was no evidence that the minor witnessed the incident). Martin's testimony was corroborated by the misdemeanor complaint that stated that L.B. had pulled out respondent's hair. Further, based on the conversations respondent had with Martin, respondent exhibited a seeming disregard of her duty to protect her children from the harms associated with domestic violence after being admonished of the attendant dangers. Although, on one occasion, respondent told Martin that she wished to leave L.B., more recent testimony presented at the hearing suggested that respondent did not have plans to permanently separate from L.B. Additionally, the testimony showed that respondent informed Martin that she had moved out to her own home but in fact L.B. continued to reside with her. This evidence further illustrates respondent's disregard for the health and wellbeing of the subject minors or, at best, a lack of appreciation of the harm caused by her lifestyle.
¶ 49 Additionally, the same evidence of domestic violence in the household firmly supports a finding that the minors were at a substantial risk of injury, which, as stated above, includes both physical injury and impairment of emotional health. See 705 ILCS 405/2-3(2) (ii) (West 2020). Importantly, courts "need not wait until a child becomes a victim of physical abuse or permanent emotional damage before such a finding may be upheld." In re Jordyn L., 2016 IL App (1st) 150956, ¶ 39. Here, Martin's testimony showed that respondent failed to appreciate the effects of domestic violence on her minor children, branding such behavior as "normal" and continuing to reside with L.B. despite a protective order prohibiting contact with him. Moreover, at the time of the hearing, respondent had not begun domestic violence services, even though she had been referred on multiple occasions.
¶ 50 For both findings of abuse and neglect, the only evidence to the contrary was L.P.'s statement to Martin that he had not observed any fighting between L.B. and respondent. L.P.'s testimony, however, is not enough to rebut the evidence to the contrary. The evidence in fact overwhelmingly supported the court's findings of neglect and abuse and, on this record, we cannot say that any opposite conclusion is clearly evident.
¶ 51 III. CONCLUSION
¶ 52 For the reasons stated, we affirm the judgment of the circuit court.
¶ 53 Affirmed.