In rе J.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Erika M., Respondent-Appellant)
No. 1-19-1119
Appellate Court of Illinois, First District, Fourth Division
January 31, 2020
2020 IL App (1st) 191119
Hon. Nicholas Geanopoulos, Judge, presiding.
Illinois Official Reports
Amy P. Campanelli, Public Defender, of Chicago (Suzanne A. Isaacson, Assistant Public Defender, of counsel), for appellant.
Kimberly M. Foxx, State‘s Attorney, of Chicago (Alan J. Spellberg, Gina DiVito, and Leslie Billings, Assistant State‘s Attorneys, of counsel), for the People.
Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain and Carrie C. Fung, of counsel), guardian ad litem.
Justices Lampkin and Burke concurred in the judgment and opinion.
OPINION
¶ 1 In this appeal, Erika M. (respondent) challenges an order of the circuit court of Cook County finding her son, J.S., to be a neglected minor due to an injurious environment. Respondent also argues that (i) the circuit court erred in denying her motion for substitution of judgе as of right and (ii) a section of the
¶ 2 For the reasons discussed herein, we affirm.
I. BACKGROUND
¶ 3 Respondent is the biological mother of seven children; the youngest, J.S., was born in April 2015. The older six children were the subjects of petitions for adjudication of wardship filed in 2007 or 2008, which were assigned to Judge Nicholas Geanopoulos: Ca. S. (07-JA-6), Jal. S. (07-JA-7), Jak. S. (07-JA-8), Ce. S. (07-JA-9), Jac. S. (07-JA-10), and A.S. (08-JA-76). J.S.‘s putative father, Andre S., is the father of respondent‘s other children except for Ca. S. Andre is not a party to this appeal.
¶ 4 In adjudication orders entered in December 2008,
¶ 5 In March 2017, respondent filed a pro se “motion to vacate guardianship and [reinstate guardianship] with mother” (motion to vacate guardianship) with respect to her three older children who were not the subject of adoption proceedings. She filed the motion under the minors’ 2007 case numbers. The circuit court subsequently appointed attorneys for respondent and the minors as well as a court appointed special advocate (CASA). In the fоllowing months, the CASA volunteer reported to the court, the public guardian‘s office subpoenaed school records, and the minors participated in therapy. The motion to vacate guardianship was continued to December 12, 2017.
¶ 6 While respondent‘s motion was pending, the Department of Children and Family Services (DCFS) received a report that two-year-old J.S. remained in her care. On November 28, 2017, the State filed a petition for adjudication of wardship and a
¶ 7 Shelley requested that the court issue a child protection warrant based on his belief that J.S. was at risk of harm due to past domestic violence issues between respondent and Andre and between Andre and Jal. S. On November 28, 2017, the circuit court (a) issued a child protection warrant directing that J.S. be brought to DCFS and (b) entered a temporary custody hearing order that granted custody of J.S. to the DCFS guardianship administrator and scheduled a hearing on December 12, 2017, i.e., the continued hearing date on respondent‘s motion to vacate guardianship as to Ca. S., Jal. S., and Ce. S.
¶ 8 Respondent did not attend the hearing on December 12, 2017, and her counsel withdrew the motion to vacate guardianship. J.S.‘s case was continued on approximately six dates in January through April 2018; respondent did not appear at these hearings, and the child protection warrant was repeatedly extended. During this period, the circuit court entered orders directing certain police officers to appear and explain the efforts madе to locate J.S.
¶ 9 After J.S. was located, respondent appeared in the circuit court for the first time in J.S.‘s case on May 4, 2018, and the public defender‘s office—which had represented her in prior matters—was appointed as her counsel. Respondent‘s counsel then immediately moved for substitution of judge1 pursuant to
¶ 10 On May 4, 2018, the circuit court quashed and recalled the child protection warrant and entered an order granting respondent supervised visits with J.S. Respondent
¶ 11 In its response, the State noted that respondent had filed her motion to vacate guardianship for Ca. S., Jal. S., and Ce. S. under their original 2007 docket numbers in March 2017. The State argued that the circuit court properly denied respondent‘s motion for substitution of judge because Judge Geanopoulos was currently assigned to a proceeding involving J.S.‘s siblings. The State further contended that the policy reasons behind
¶ 12 The circuit court denied the motion to reconsider, finding that respondent had voluntarily reopened the proceedings with respect to three of her other children and such proceedings were pending at the time that J.S.‘s petition for adjudication of wardship was filed. The circuit court also found that the issuance of the child protection warrant constituted a “substantive ruling.” J.S.‘s case thus continued before Judge Geanopoulos.
¶ 13 Two witnesses testified at the adjudication hearing: Kendra Cornett, a therapist formerly employed by Healthy Families Chicago; and Shelley. Although her counsel represented that she was in court earlier in the day, respondent did not attend the hearing.
¶ 14 Cornett testified she provided individual therapy for Ca. S., Ce. S., and Jal. S. in the fall of 2017. The original goal was to prepare the children for their transition home to respondent, but they ultimately stayed with their guardian because the motion to vacate guardianship was withdrawn. Ca. S. was 17, Ce. S. was 16, and Jal. S. was 12 or 13 years old.
¶ 15 Cornett testified that all three children reported that respondent and Andre lived together. Ca. S. reported that Andre sometimes made vague verbal threats, e.g., “I‘m gonna get you.” She expressed frustration that respondent allowed Andre to speak to her in that manner. When Ce. S. would speak out “if something wasn‘t right,” she was told by respondent and Andre that she talked too much. At one point, Ce. S. did not want to go to respondent‘s home, even for a visit. Both Ca. S. and Ce. S. described an incident where Andre smashed their cell phones. Cornett testified, however, that neither reported being afraid, and Cornett was not concerned about their safety in respondent‘s home because of their ages and their supportive guardian.
¶ 17 Although Cornett described them as a “solid family,” she testified that the children did not want to transition to full-time residence with respondent because they were concerned about her ability to adequately address their physical needs, e.g., her ability to provide new clothing.
¶ 18 Following Cornett‘s testimony, the State submitted (a) certified orders for J.S.‘s siblings, (b) an integrated assessment from January 2013, and (c) service plans approved in January 2011 and March 2015. Respondent‘s counsel did not object to their admission, but he urged the circuit court to afford the exhibits minimal weight because they were “remote in time.”
¶ 19 Shelley testified that he was assigned to the J.S. investigation in September 2017 based on an allegation of a risk of harm. According to Shelley, respondent had two prior indicated reports2 in approximately 2008: for head trauma to Jak. S. and risk of harm to her other children.
¶ 20 When Shelley went to respondent‘s apartment on September 19, 2017, Andre answered the door and stated that respondent and J.S. were out running errands. During assessments by Shelley, Andre stated that he did not have drug, alcohol, or domestic violence issues. Shelley returned to the apartment on the following day and met with respondent and J.S. Respondent denied drug or alcohol issues; she acknowledged past domestic violence issues with Andre but denied any ongoing issues. Although Shelley оbserved a thumbprint-shaped mark under his eye, J.S. told Shelley that he had not been spanked or hit. J.S. was very active during the visit.
¶ 21 Shelley performed a safety assessment of the apartment and concluded it was safe. Because J.S. did not have his own bed, Shelley spoke with respondent about DCFS providing one. During their conversation, respondent told Shelley that she did not want to disclose Andre‘s address because she did not feel comfortable doing so.
¶ 22 Shelley testified that he met with Ca. S., Ce. S., and Jal. S. at their school in September 2017. Jal. S. stated that there were no physical abuse issues with Andre (or otherwise) but that he was more comfortable living with his aunt because her home was calmer. Jal. S. told Shelley there were no problems when he and his sisters had visitation with respondent during the summer.
¶ 23 Shelley subsequently called respondent on September 26, 2017, to discuss a timе to drop off the bed for J.S. She again declined to give Andre‘s address but did provide his telephone number. On November 14, 2017, Shelley met with respondent at her apartment; they discussed the proceedings regarding her three older children, and she provided the December 12, 2017, court date to Shelley. Shelley called Andre on November 14 and asked for his address; Andre hung up and did not pick up when Shelley called a second time.
¶ 24 Following his communications with respondent and Andre, Shelley was instructed by his supervisor to offer intact family services to respondent and to suggest a safety plan for J.S. while respondent
¶ 25 Shelley then testified regarding his meeting with respondent on November 17 (described above), wherein respondent agreed to the recommended services, but Andre expressed his disagreement after letting himself into the apartment. According to Shelley, Andre was visibly angry, he paced back and forth, and he was shouting; respondent attempted to calm him down. Shelley then testified about his inability to regain access to the apartment after going to his vehicle and his subsequent unsuccessful attempts to gain access in late November 2017.
¶ 26 Shelley testified on cross-examination that the apartment was clean and safe, with working utilities and adequate food. He did not observe any signs on J.S. of abuse or neglect, and he had no concerns regarding J.S.‘s health based on his communications with J.S.‘s doctor. After contacting the police department, Shelley was not concerned about current instances of domestic violence in the home.
¶ 27 During closing arguments, the state‘s attorney asserted that the family had a long history with DCFS. Counsel argued that Andre lived in the home, he had an angry outburst in front of J.S. on November 17, he did not comply with past services, and he had a history of domestic violence with respondent. The state‘s attorney also argued that Ca. S. and Ce. S. reported Andre yelled at them and smashed their phones.
¶ 28 The public guardian‘s attorney adopted the State‘s arguments and noted the prior indicated report for a head injury. Counsel also noted that the initial investigation began as an attempt to ameliorate the issues in the home, but the parents’ lack of cooperation resulted in DCFS custody of J.S. According to the public guаrdian‘s attorney, respondent‘s reversal on her prior agreement to participate in intact services demonstrated Andre‘s influence over her.
¶ 29 Respondent‘s counsel noted that a decade has passed between the current investigation and the findings regarding respondent‘s other children. He argued that the sole reason DCFS took temporary custody was because respondent and J.S. could not be located. Counsel observed that Shelley‘s investigation commenced in September, but the case was not filed until November because, among other things, the investigation did not reveal any abuse or neglect of J.S.
¶ 30 The circuit court concluded that this was a case of anticipatory neglect, noting (a) the 2008 findings of abuse and neglect and the 2014 involuntary termination of parental rights, (b) the statements of J.S.‘s siblings that Andre resided in the home and Andre‘s use of keys to enter the apartment, and (c) Andre‘s refusal to provide his address and his lack of cooperation with DCFS. The circuit court found Shelley to be credible and took judicial notice of the previous orders. The circuit court also noted that respondent “chose to leave” prior to the commencement of the adjudicatory hearing. On December 10, 2018, the circuit court entered an adjudication order finding J.S. was neglected based on an injurious environment.
¶ 31 During the dispositional hearing—which respondent did not attend—J.S.‘s case manager testified that neither respondent nor Andre had participated in the integrated assessment for J.S.‘s case. Respondent had completed parenting coaching services, was engaged in therapy, and
¶ 32 In a disposition order entered on May 2, 2019, J.S. was adjudged a ward of the court and respondent was found to be unable—and Andre was found to be unwilling and unable—for some reason other than financial circumstances alone to care for, protect, train, or discipline J.S. The permanency order included a 12-month return home goal and provided that respondent had made substantial progress toward J.S.‘s return home. Respondent timely filed the instant appeal.
II. ANALYSIS
A. Preliminary Issues
¶ 33 Prior to discussing respondent‘s contentions on appeal, we briefly address the timeliness of our decision. This case is designated as “accelerated” pursuant to Illinois Supreme Court Rule 311 (eff. July 1, 2018) because it involves child custody matters. With respect to such casеs, Rule 311(a)(5) provides, in part, that “[e]xcept for good cause shown, the appellate court shall issue its decision within 150 days after the filing of the notice of appeal.” Ill. S. Ct. R. 311(a)(5) (eff. July 1, 2018). The 150-day period herein expired on October 25, 2019. We note, however, that the parties requested extensions of time for the filing of their respective briefs; respondent‘s reply brief was filed on December 11, 2019, and oral argument was held on December 19, 2019. Since the case was not ready for disposition until December 2019, we find good cause for issuing our decision after the 150-day deadline. E.g., In re B‘yata I., 2013 IL App (2d) 130558, ¶ 26.
¶ 34 Turning to the merits, respondent advances three primary arguments on appeal. First, she contends that the circuit court‘s finding of neglect was against the manifest weight of the evidence. Second, she argues that the circuit court erred in denying her motion for substitution оf judge as of right. Third, she asserts that
B. Denial of Motion for Substitution of Judge
1. General Principles
¶ 35 The substitution of a judge in civil and criminal cases in Illinois is governed solely by statute. In re Marriage of O‘Brien, 2011 IL 109039, ¶ 26. As statutory construction presents a question of law, our review is de novo. In re Estate of Wilson, 238 Ill. 2d 519, 552 (2010).
¶ 36 A proceeding under the Juvenile Court Act is civil in nature. In re C.M., 351 Ill. App. 3d 913, 916 (2004). In civil cases,
¶ 37 Civil litigants are entitled to one substitution of judge without cause as
¶ 38 A party must “timely” exercise the right to a substitution of judge without cause.
¶ 39 When properly made, a motion for substitution of judge as of right is absolute, and the circuit court has no discretion to deny the motion. Bowman v. Ottney, 2015 IL 119000, ¶ 17. Accordingly, our reviеw of the denial of a motion for substitution of judge is de novo, and “such review should lean toward favoring rather than defeating a substitution of judge.” Petalino, 2016 IL App (1st) 151861, ¶ 16.
2. Applicability of Section 1-5(7) of the Juvenile Court Act
¶ 40 Prior to our analysis under
“A party shall not be entitled to exercise the right to a substitution of a judge without cause under subdivision (a)(2) of Section 2-1001 of the Code of Civil Procedure in a proceeding under this Act if the judge is currently assigned to a proceeding involving the alleged abuse, neglect, or dependency of the minor‘s sibling or half-sibling and that judge has made a substantive ruling in the proceeding involving the minor‘s sibling or half-sibling.”
705 ILCS 405/1-5(7) (West 2018).
Illinois courts appear to use “substantive” and “substantial” interchangeably, i.e., a substantive ruling is one that directly related to the merits of the case. In re Chelsea H., 2016 IL App (1st) 150560, ¶ 54. Since the arguments regarding
¶ 41 We first consider whether Judge Geanopoulos was “currently assigned to a proceeding involving the alleged abuse, neglect, or dependency” of J.S.‘s siblings. As of November 28, 2017—when the State filed a petition for adjudication of wardship as to J.S.—the circuit court was currently assigned to proceedings regarding three of J.S.‘s siblings. Among other things, the court had continued respondent‘s motion to vacate guardianship to December 12, 2017. Respondent contends, however, that because she “merely sought a change in placement, when abuse or neglect issues has [sic] long ago been resolved,” the proceedings on her
¶ 42 Her motion to vacate guardianship was filed as a “supplemental petition” under
¶ 43 Respondent argues that her motion to vacate guardianship did not render
¶ 44 Respondent also observes that the proceedings on her motion to vacate the guardianship with respect to her older children had already concluded at the time of her motion for substitution of judge in J.S.‘s case, i.e., her counsel withdrew the motion to vacate on December 12, 2017, and the motion for substitution of judge was filed on May 4, 2018. Since her substitution motion was filed after the conclusion of the proceedings regarding the motion to vacate, she contends that Judge Geanopoulos was not “currently assigned” to the siblings’ proceedings. We reject this contention. Although she was informed of the November 28, 2017, hearing in J.S.‘s case through a voicemail from Shelley, she did not attend that hearing or subsequent hearings in early 2018. The circuit court issued and repeatedly extended a child protection warrant based on a potential risk of harm to J.S. If we were to determine that
¶ 45 We must next consider whether the judge had “made a substantive ruling” in the siblings’ proceedings.
¶ 46 As required by
¶ 47 For the foregoing reasons, we find that circuit court correctly decided that
3. Section 2-1001 of the Code
¶ 48 A motion for substitution of judge as of right “shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case.”
¶ 49 Judge Geanopoulos entered a temporary custody hearing order and issued a child protection warrant directing the return of J.S. on November 28, 2017. Although the transcripts of the hearings in early 2018 are not included in the record on appeal, the written orders from that time period reflect that the circuit court extended the warrant and directed law enforcement to appear and reрort on the efforts made to locate J.S.
¶ 50 According to respondent, the child protection warrant “was only about the child‘s whereabouts and not the merits of the abuse or neglect.” We are unpersuaded by this contention. The motion for temporary custody stated that there was an immediate and urgent necessity to take J.S. into temporary custody because, in part, the “parents refused to cooperate with DCFS personnel and locked the current investigator out of the family‘s apartment” and “DCFS has been unable to assess the safety of this minor while in the parent‘s care since November 17, 2017.” In other words, respondent‘s possible abscondment
¶ 51 Respondent argues that the temporary custody hearing order herein was akin to a ruling in a probable cause hearing in a criminal case and should not be deemed a substantive ruling for purposes of
¶ 52
“[i]f any party has not entered an appearance in the case and has not been found in default, rulings in the case by the judgе on any substantial issue before the party‘s appearance shall not be grounds for denying an otherwise timely application for substitution of judge as of right by the party.”
735 ILCS 5/2-1001(a)(2)(iii) (West 2018).
According to respondent, “any arguably substantive ruling would not bar substitution of judge under [section 2-1001] since the ruling would have preceded May 4, 2018, when the mother first appeared and [counsel] was appointed.” We disagree. Although our review should lean toward favoring rather than defeating a substitution of judge (Petalino, 2016 IL App (1st) 151861, ¶ 16), we reject the proposition that respondent‘s own purposeful avoidance of the court‘s reach would serve as an underpinning for her substitution motion. We further find that her application was not “otherwise timely” for purposes of
¶ 53 We further note that “even if the trial court did not rule on a substantial issue, a motion for substitution of judge as of right may still be denied if,
¶ 54 For the foregoing reasons, we conclude that even if
C. Constitutionality of Section 1-5(7) of the Juvenile Court Act
¶ 55 Respondent next contends that the application of
¶ 56 Statutes are presumed to be constitutional. In re R.C., 195 Ill. 2d 291, 296 (2001). Respondent, as the party challenging the constitutionality of
¶ 57 In the instant case, however, we need not address the constitutionality of
D. Circuit Court‘s Finding of Neglect
¶ 58 Respondent argues that the circuit court‘s finding of neglect was against the manifest weight of the evidence; the State and the public guardian contend that the circuit court properly found that J.S. was neglected due to an injurious environment. For the reasons discussed below, we conclude that the neglect finding was not against the manifest weight of the evidence.
¶ 59 The purpose of the Juvenile Court Act is to ensure the best interests and safety of the child. In re Arthur H., 212 Ill. 2d 441, 467 (2004); accord In re A.P., 2012 IL 113875, ¶ 18 (noting that in any proceeding under the Juvenile Court Act, including an adjudication of wardship, the pаramount consideration is the best interest of the child). The Juvenile Court Act “provides the procedures that must be followed for determining whether a minor should be removed from his or her parents’ custody and made a ward of the court.” A.P., 2012 IL 113875, ¶ 18.
¶ 60 A trial court must employ a two-step process to decide whether a minor should become a ward of the court. Id. ¶ 19. The first step is an adjudicatory hearing on the petition for adjudication of wardship. Id. At the adjudicatory hearing, the trial court solely considers the question of whether the minor is abused, neglected, or dependent. Id.; see also
¶ 61 Cases involving neglect are sui generis and must be decided based on their unique circumstances. In re Jordyn L., 2016 IL App (1st) 150956, ¶ 29. The State bears the burden to prove allegations of neglect by a preponderance of the evidence, meaning that the State must establish that the allegations are more probably true than not. A.P., 2012 IL 113875, ¶ 17. If the State fails to prove the allegations of neglect, the trial court must dismiss the petition. Arthur H., 212 Ill. 2d at 464. On review, the trial court‘s finding of neglect will not be reversed unless it is against the manifest weight of the evidence, i.e., only if the opposite conclusion is clearly evident. A.P., 2012 IL 113875, ¶ 17.
¶ 62 A neglected minor includes “any minor under 18 years of age *** whose environment is injurious to his or her welfare.”
¶ 63 In any hearing under the Juvenile Court Act, proof of the abuse, neglect, or dependency of one minor is admissible evidence on the issue of the abuse, neglect, or dependency of any other minor for whom the respondent is responsible.
¶ 64 Thе circuit court in the instant case found that J.S. was neglected under a theory of anticipatory neglect.
“Under the anticipatory neglect theory, the State seeks to protect not only children who are the direct victims of neglect or abuse, but also those who have a probability to be subject to neglect or abuse because they reside, or in the future may reside, with an individual who has been found to have neglected or abused another child.” Arthur H., 212 Ill. 2d at 468.
See also In re Erin A., 2012 IL App (1st) 120050, ¶ 34 (noting that the anticipatory neglect doctrine recognizes that a parent‘s treatment of one child is probative of how that parent may treat his or her other children). A trial court presented with evidence of prior neglect by a parent should not be forced to refrain from acting until another child is injured. In re Kenneth D., 364 Ill. App. 3d 797, 801 (2006). However, there is no per se rule of anticipatory neglect in Illinois, and eаch case must be reviewed according to its own facts. Arthur H., 212 Ill. 2d at 468-69; J.P., 331 Ill. App. 3d at 235.
¶ 65 The evidence herein supports the circuit court‘s finding of anticipatory neglect. In adjudication orders entered in 2008, five of respondent‘s older children were found to be neglected based on head trauma inflicted on Jak. S. The adjudication orders found that the abuse or neglect was inflicted by a parent. Respondent‘s parental rights as to her sixth child (A.S.) were involuntarily terminated in September 2014 based, in part, on her desertion of the child for at least three months before the termination proceedings.3 Although “a lengthy period of time between allegations of neglect or abuse, without evidence of current conditions of the current child‘s neglect or abuse” may be insufficient to prove anticipatory neglect (In re J.C., 396 Ill. App. 3d 1050, 1058 (2009)), the circuit court appeаrs to have appropriately considered the nature and timing of the prior allegations. The record also reflects that respondent did not complete the recommended services in conjunction with her older children‘s cases.
¶ 66 Furthermore, it is evident from the circuit court‘s findings that its determination
¶ 67 The circuit court also noted that Andre had an “outburst” during Shelley‘s visit—where J.S. was present—and that Andre had persuaded respondent not to participate in intact services and a care plan proposed by DCFS. See, е.g., In re Adam B., 2016 IL App (1st) 152037, ¶ 52 (finding that the respondent‘s noncompliance with recommended intact services, her refusal to allow a safety assessment of her home, and her failure to assist the DCFS investigator to procure medical care for the minors constituted evidence of abuse and neglect). While we recognize that respondent‘s case manager testified during the dispositional hearing that she had completed parenting coaching services and was engaged in therapy, such efforts did not ” ‘somhow absolve or erase [her] initial failing that triggered State intervention and removal of the child.’ ” In re S.W., 342 Ill. App. 3d 445, 451 (2003) (quoting In re C.W., 199 Ill. 2d 198, 217 (2002)).
¶ 68 As noted above, the best interests of the child are paramount in child custody proceedings under the Juvenile Court Act, and a trial court is afforded “broad discretion and great deference” in matters involving minors. In re E.S., 324 Ill. App. 3d 661, 667 (2001). Although the evidence suggested that J.S. was a healthy and nourished child who had not been physically injured, such evidence does not preclude a finding of neglect. See Jordyn L., 2016 IL App (1st) 150956, ¶ 39. The record reflects that the court considered both the past findings of neglect with respect to the older siblings and J.S.‘s current condition and care in its determination that J.S. was a neglected minor due to an injurious environment. After careful consideration of the totality of the evidence, we conclude that the finding of neglect was not against the manifest weight of the evidence.
III. CONCLUSION
¶ 69 For the reasons set forth herein, the judgment of the circuit court of Cook County is affirmed in its entirety.
¶ 70 Affirmed.