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                                                                                                                                              FOURTH DIVISION
                                                                                                                                              November 23, 2005

No. 1-05-2033

JUSTICE GREIMAN delivered the opinion of the court:

On April 6, 2005, the State filed petitions asking the court to adjudge Gustavo andKrystal wards of the court and scheduling a temporary custody hearing for April 27, 2005. Thepetition regarding Gustavo alleged that he was neglected pursuant to section 2-3(1)(b) of Act,because he was a minor whose environment was injurious to his welfare, and that he was abusedpursuant to section 2-3(2)(i) of the Act, because his parents, Rocio and Gustavo, Sr., inflicted,caused to be inflicted or allowed to be inflicted physical injury upon him, and section 2-3(2)(ii)of the Act, because his parents created a substantial risk of physical injury to him. In support ofthese allegations, the State cited the following facts:

"On or about February 4, 2005, this minor presented at St. Anthony's Hospitalwith a large hematoma on the right side of his head. This minor was diagnosedwith a right parietal skull fracture, healing rib fractures and a healing fracture ofthe wrist. Medical personnel indicate that this minor's skull fracture may beconsistent with the explanation provided by the natural parents. Further, medicalpersonnel indicate that in the absence of any history, the other injuries sustainedby this minor are suspicious for abuse. Natural parents reside together and werecustodial at all relevant times."

The petition regarding Krystal alleged that she was abused pursuant to section 2-3(2)(ii)of the Act and neglected pursuant to section 2-3(1)(b) of the Act. In support of these allegations,the State cited the fact that Krystal's sibling had suffered skull, wrist and rib fractures.

Prior to the temporary custody hearing, Gustavo, Sr., admitted to being Gustavo's father. Gustavo, Sr., and Rocio, the minors' mother, denied that Gustavo, Sr., was Krystal's father. Immediately before the custody hearing on April 27, 2005, the trial court appointed the PublicGuardian to represent Gustavo and Krystal as their attorney and guardian ad litem, the publicdefender to represent Rocio and attorney Michael Kozubek to represent Gustavo, Sr. The courtcalled a recess to allow the attorneys to speak with their clients and then recalled the case.

At the hearing, Rocio testified that she was the mother of Gustavo, born August 26, 2004,and Krystal, born July 1, 2001. Rocio, the minors and Gustavo, Sr., lived with Rocio's parents,three sisters and brother. In general, while Rocio worked during the day, her mother andGustavo, Sr., would care for Gustavo. According to Rocio, Gustavo was a happy baby who wasoccasionally fussy but cried a normal amount for a baby of his age. Rocio testified that inJanuary 2005, she took Gustavo to his pediatrician, Dr. Glaab, for a checkup. Dr. Glaabexamined Gustavo and found no indication of broken bones. Also in January 2005, Rocio tookGustavo to another doctor to treat a gum infection. That doctor also did not find any indicationof broken bones.

On February 4, 2005, Gustavo, Sr., had been caring for Gustavo while Rocio was at work. When Rocio returned home, she gave Gustavo a bath. Rocio noticed a soft spot on the side ofGustavo's head. Rocio and Gustavo, Sr., took Gustavo to the emergency room at St. Anthony'sHospital. After examining Gustavo and performing tests, the emergency room doctors informedRocio and Gustavo, Sr., that Gustavo had a fracture on the right side of his head and fractures inhis wrist, leg and ribs. Rocio could not, at that time, explain what had caused the fractures.

Rocio's mother had left for a trip to Mexico on February 3, 2005. When she returned onFebruary 5, 2005, she told Rocio that either the day before she left or the day she left, she hadbeen caring for Gustavo, who was asleep on her bed, while Rocio was at work, when she heardGustavo crying. Rocio's mother went into her room and found Krystal in the room and Gustavoon the floor. Rocio testified that Krystal was very large and active for her age. Krystal was threeyears old and weighed 62 pounds. On more than one occasion, Rocio had witnessed Krystalplaying inappropriately with Gustavo. Specifically, Rocio had found Krystal jumping on the bedon which Gustavo was lying, jumping on Gustavo, squeezing his cheeks, hugging him extremelyhard, throwing things at him and slapping him. Rocio repeatedly told Krystal that Gustavo was asmall baby and that her behavior was inappropriate, but Krystal quickly forgot her mother'sadmonishments and continued to be rough with the baby. Rocio testified that she occasionallyspanked Krystal but did not spank Gustavo and that Gustavo, Sr., did not spank either minor.

Department of Children and Family Services (DCFS) caseworker Josephine Carrascotestified that on February 4, 2005, DCFS received a hot line telephone call indicating thatGustavo had been brought to the Saint Anthony's Hospital emergency room with trauma to theright side of his head. Carrasco was assigned to Gustavo and Krystal's case on February 7, 2005. In the course of her investigation, Carrasco spoke with Dr. Martinez, the emergency room doctorwho had treated Gustavo. Dr. Martinez had examined Gustavo and had ordered bone surveys. The surveys showed that Gustavo had a fractured skull, three healing rib fractures, a healing wristfracture and a healing leg fracture. Dr. Martinez opined that Gustavo had not been abused orneglected and that the injuries were accidental and may have been caused by Krystal.

Carrasco also spoke with Dr. Glaab, the family's pediatrician who had treated bothGustavo and Krystal. Dr. Glaab indicated to Carrasco that she had told Rocio that Krystal shouldnot be left alone with Gustavo because Krystal was rough and big for her age. Dr. Glaab opinedthat all of Gustavo's injuries could have all been caused by Krystal and that they were not causedby Rocio, Gustavo, Sr., or Rocio's mother.

Carrasco testified that Chicago police department Detective Robert Seguess had alsoinvestigated the case. According to Carrasco, in the course of his investigation, Seguess was alsotold that on either February 2 or 3, 2005, Rocio's mother was caring for Gustavo, who was asleepin her bedroom, and that when Rocio's mother heard Gustavo crying, she went to her bedroomand found him on the floor. In Rocio's mother's bedroom, Seguess observed a dresser within acouple of feet of the bed. From his observation, Seguess opined that Gustavo had fallen out ofthe bed and hit his head on the dresser.

Carrasco brought the case to the Multi-disciplinary Pediatric Education and EvaluationConsortium (MPEEC). She explained that when a child under investigation has sustained a headinjury, the case is brought to the MPEEC. An MPEEC doctor is assigned to the case to assessmedical records and films and to make a determination of whether the injuries are consistent withthe explanations provided by the parents and whether the injuries are accidental or nonaccidental. Dr. Leonhardt was assigned to Gustavo's case. Dr. Leonhardt requested additional bone surveysfrom Children's Memorial Hospital. Those surveys, taken 20 days after Rocio and Gustavo, Sr.,first took Gustavo to the Saint Anthony's Hospital emergency room, showed that Gustavo had afractured skull, a fractured wrist and three fractured ribs. Carrasco testified that Dr. Leonhardtopined that the skull fracture could have been caused by Gustavo's fall from the bed, but that therib and wrist fractures could not have been the result of the fall. According to Carrasco, Dr.Leonhardt believed that the rib injuries had been caused by squeezing, shaking or hitting and thatthey could not have been caused by a three-year-old. However, Dr. Leonhardt had neverinteracted with Krystal. Carrasco testified that Dr. Leonhardt recommended that the minors bereturned home with close family services in place. A summary statement of Dr. Leonhardt'sfindings was admitted into evidence. The content of the statement was consistent withCarrasco's testimony regarding Dr. Leonhardt's opinions.

Carrasco testified that from the time Gustavo was released from the hospital until earlyApril 2005, the minors resided away from Rocio and Gustavo, Sr., with their maternal aunt. Since April 2005, Rocio and Gustavo, Sr., had moved out of the house they had formerly sharedwith Rocio's parents and siblings and Gustavo and Krystal had been residing in the house, caredfor primarily by Rocio's mother. Carrasco had observed Rocio and Gustavo, Sr., interacting withthe minors at the hospital and at the minors' aunt's house. She found Rocio and Gustavo, Sr., tobe loving, caring parents. Carrasco testified that since Gustavo's release from the hospital, Rocioand Gustavo, Sr., had spent substantial time at the minors' aunt's house caring for them. Carrasco also screened the other members of the family who had been living with Gustavo andKrystal and determined that none of them were likely to abuse the minors. Carrasco had noconcern for the health and safety of the minors should they be returned to the care of Rocio andGustavo, Sr., and recommended that the court return the minors to the care of their parents, that itimpose an order of protection and that it order Rocio and Gustavo, Sr., to participate in parentingclasses and Krystal to participate in a Head Start program.

Following the hearing, the court found that probable cause that Gustavo and Krystal wereabused or neglected did not exist. The stated basis for the court's finding was:

"Insufficient evidence of non-accidental injury [and] insufficient evidence ofneglect. Suspicion of abuse by reviewing physician [was] insufficient in [light] of[evidence] of treating M.D., Dr. Martinez, [and] treating M.D.[,] Dr. Glaab, [and]results of [defendants' and] Chicago police investigations."

Accordingly, the court dismissed the State's petitions for adjudication of wardship of the minors.

The State and the Public Guardian filed motions for reconsideration. In their motions, theState and Public Guardian included an addendum to Dr. Leonhardt's summary statement. Theaddendum stated that Dr. Leonhardt was of the opinion that Gustavo was the victim of childabuse and that, in forming his opinions, he was aware that Krystal weighed 62 pounds. Despiteher large size, Dr. Leonhardt believed that Krystal did not cause Gustavo's rib fractures. TheState and Public Guardian argued that the court had applied the incorrect "preponderance of theevidence" standard, rather than a "probable cause" standard, that the State had shown probablecause that the minors were abused or neglected, that they had used due diligence in investigatingthe matter and that the addendum was not cumulative.

The trial court denied the motions for reconsideration. It noted that it had applied thecorrect standard in finding that the evidence did not show probable cause that Gustavo andKrystal were abused or neglected. It further stated that it "found the mother, [Rocio], to be a verycredible witness. Her demeanor was appropriate. She was not evasive and she was notimpeached. The DCFS investigator was also credible and professional." The court found that,though the State had proven a prima facie case of abuse or neglect, the State's case wasovercome by the weight of the evidence presented. Specifically, the court cited the opinions ofDr. Martinez and Dr. Glaab, that Gustavo's head injury was a result of his fall from the bed andthat Krystal caused his other injuries. With regard to the addendum, the court noted that the Statefiled its petition for wardship on April 6, 2005. The State then had until the temporary custodyhearing on April 27, 2005, to investigate its case. During that time, the State was free tointerview Dr. Leonhardt and could have called him as a witness at the hearing. Accordingly, theState had not demonstrated that it was unable to obtain Dr. Leonhardt's addendum prior to thehearing. Furthermore, the court found the addendum cumulative because Dr. Leonhardt'ssummary statement, which was admitted into evidence at the hearing, encompassed the opinionsexpressed in the addendum. The Public Guardian appealed.

We will first address Rocio and Gustavo, Sr.'s contention that this appeal should bedismissed because the Public Guardian does not have the authority to prosecute an appeal of thetrial court's dismissal of a petition for wardship. In support of their contention, Rocio andGustavo, Sr., cite In re J.J., 142 Ill. 2d 1 (1991), and In re D.S., 198 Ill. 2d 309 (2001), whichhold that only the State, not a guardian ad litem, may prosecute a petition for adjudication ofwardship. The Public Guardian responds that In re J.J. actually supports its appeal because inthat case, the party in interest on appeal was the minor's guardian ad litem. The Public Guardianfurther notes that under the Act, a minor has a right both to an attorney and to a guardian ad litemand has a right to "be present, to be heard, to present evidence material to the proceedings, tocross-examine witnesses, [and] to examine pertinent court files." 705 ILCS 405/1-5(1) (West2004). Accordingly, argues the Public Guardian, a minor has a right to appeal through hisattorney. Finally, the Public Guardian notes that, though the State is an appellee in this actionand has not joined the notice of appeal, its brief supports the Public Guardian's position.

In all child custody proceedings under the Act, the court's primary concern is protectingthe best interests of the children involved. In re Ashley F., 265 Ill. App. 3d 419, 424 (1994); 705ILCS 405/1-2 (West 2004). Section 1-5 of the Act provides that a minor who is the subject ofproceedings under the Act has a right to be present, to be heard, to present material evidence, tocross-examine witnesses, to examine pertinent court files and records and to be represented bycounsel. 705 ILCS 405/1-5 (West 2004). Additionally, under the Act, immediately upon thefiling of a petition alleging that a minor is abused or neglected, the court must appoint a guardianad litem. 705 ILCS 405/2-17(1) (West 2004). The guardian ad litem is charged withrepresenting the best interests of the minor and with presenting recommendations to the courtconsistent with that duty. 705 ILCS 405/2-17(1) (West 2004). "It has long been established that,upon the filing of a petition under the Juvenile Court Act, the 'people become the real partycomplainant and must prosecute the proceeding.' " In re D.S., 198 Ill. 2d at 322, quoting Peoplev. Piccolo, 275 Ill. 453, 455 (1916); In re J.J., 142 Ill. 2d at 6. Section 1-6 of the Act providesthat the State's Attorney "shall represent the people of the State of Illinois in proceedings underthis Act." 705 ILCS 405/1-6 (West 2004). By extension, a guardian ad litem does not haveauthority to prosecute a petition brought pursuant to the Act. In re D.S., 198 Ill. 2d at 333.

In In re J.J., DCFS filed petitions for adjudication of wardship of three minors and thePublic Guardian was appointed the minors' attorney and guardian ad litem. The State filed amotion to dismiss the petitions. Without considering the merits of the petitions or the motion,the trial court dismissed the petitions, noting that to compel the State to prosecute them wouldviolate the doctrine of separation of powers. The minors, through the Public Guardian, appealedthe dismissal. The appellate court reversed and remanded the matter for a hearing on the meritsof the State's motion. On appeal, the supreme court acknowledged that in criminal matters, theState is afforded wide discretion in determining whether and what charges may be criminallybrought against a defendant and that a court is not authorized to order the State to charge adefendant. However, the court noted, dependancy and neglect proceedings brought under the Actare civil, not criminal in nature. Further, the court reasoned, both the trial court and the State arecharged, under the Act, with protecting the best interests of the minor. Accordingly:

"The evil of a court's attempting to invade the exclusive executive discretion ofthe constitutional office of the State's Attorney in controlling the initiation andmanagement of criminal litigation is absent in dependency and neglectproceedings, where both the State's Attorney and the court are charged with theduty of ensuring that, at each step of the wardship adjudication process, the bestinterests of the minor, the minor's family and the community are served." In reJ.J., 142 Ill. 2d at 8-9.

The court, therefore, held that "the circuit court shall consider the merits of the motion anddetermine, on the record, whether dismissal is in the best interests of the minor, the minor'sfamily, and the community." In re J.J., 142 Ill. 2d at 9. Finally, the court noted that the orderdismissing the petitions was final and appealable and that "[t]he public guardian has properlyappealed." In re J.J., 142 Ill. 2d at 12.

In In re D.S., the trial court determined that it was in the best interests of the minor to seta permanency goal of substitute care pending a court determination on a termination of parentalrights petition. Relying on In re J.J., the supreme court held:

"[O]nce the circuit court found that this particular permanency goal was in thebest interests of D.S., the court had the duty and the authority, pursuant to section2-28(3)(a) of the Act, to enter any order 'necessary to conform the minor's legalcustody and status to the goal the court selected.' Therefore, under thesecircumstances, the circuit court appropriately ordered the State's Attorney toprosecute the termination petition as a means of accomplishing the permanencygoal found to be in D.S.'s best interests." (Emphasis in original.) In re D.S., 198Ill. 2d at 327.

Though in both cases, the supreme court noted that only the State is granted the authorityto prosecute a petition filed under the Act, neither In re J.J. nor In re D.S. directly addresses theissue raised here: whether a minor's court-appointed attorney and guardian ad litem may appeal atrial court's ruling on the merits of a petition brought pursuant to the Act. Additionally, theparties have not cited, nor has our research revealed, a case that addresses the relevant issue. However, we note that case law is replete with cases in which a minor, through his court-appointed attorney and guardian ad litem, has appealed a trial court's ruling entered pursuant tothe Act. See, e.g., In re Marcus H., 297 Ill. App. 3d 1089 (1998) (minor appealed trial court'sfinding that he was neglected but not abused); In re A.M., 296 Ill. App. 3d 752 (1998) (minorappealed trial court's refusal to find that mother's former paramour was the perpetrator of sexualabuse); In re D.H., 295 Ill. App. 3d 981 (1998) (minor appealed trial court's determination that agoal of long-term relative care, rather than adoption, was appropriate); In re Ashley F., 265 Ill.App. 3d 419 (1994) (minor appealed trial court's dismissal of petition for adjudication ofwardship); In re Monica S., 263 Ill. App. 3d 619 (1994) (minor appealed trial court's order onpetition for wardship, returning her to her parents); L.F.H. v. People, 256 Ill. App. 3d 451 (1993)(minor appealed trial court's order that she remain in referred placement).

We find that the above-cited cases were properly allowed and that this appeal, too, shouldnot be dismissed. Under the Act, the guardian ad litem, like the court and the State, is chargedwith protecting the best interests of the minor he or she represents. This responsibility would becompromised if the guardian ad litem were not permitted to appeal an order of the trial court thathe or she believed was not in the best interest of the minor. Accordingly, we hold that, thoughthe State has exclusive authority in the trial court to prosecute a petition brought under the Act, inorder to fulfill their duty to protect the best interests of the minor they represent, the minor'sattorney and guardian ad litem may appeal, on the minor's behalf, a trial court's order regarding apetition that they believe is contrary to the minor's best interests.

We now turn to the merits of the Public Guardian's contention, with which the Stateagrees, that the trial court's dismissal of the petitions was against the manifest weight of theevidence because the evidence established probable cause that Gustavo and Krystal were abusedand neglected.

As noted above:

"In all child custody proceedings under the Juvenile Act, the juvenile court'sprimary concern is the best interests and welfare of the children involved.[Citation.] To that end, the juvenile court is vested with wide discretion.[Citations.] That court's opportunity to observe the demeanor and conduct of theparties and witnesses must be given great weight, and, upon review, itsdeterminations will not be disturbed unless they are against the manifest weight ofthe evidence." In re M.B., 241 Ill. App. 3d 697, 705 (1992).

Section 2-10(2) of the Act provides that at a temporary custody hearing, a trial court first decideswhether there is probable cause to believe that the minor is abused, neglected or dependent. 705ILCS 405/2-10(2) (West 2004); In re Ashley F., 265 Ill. App. 3d at 424. If the court findsprobable cause, it is required to determine whether there is an urgent and immediate necessity forthe protection of the minor to remove him from his home. 705 ILCS 405/2-10(2) (West 2004);In re Ashley F., 265 Ill. App. 3d at 424. However, if the court finds that there is no probablecause to believe that the minor is abused, neglected or dependent, it must dismiss the petition. 705 ILCS 405/2-10(1) (West 2004); In re Ashley F., 265 Ill. App. 3d at 424.

In its petitions for adjudication of wardship, the State alleged that Gustavo was abusedunder section 2-3(2)(i) and (ii) and that Krystal was abused pursuant to section 2-3(2)(ii) of theAct. Section 2-3(2) defines an abused child as one whose

"parent or immediate family member ***

(i) inflicts, causes to be inflicted, or allows to be inflicted uponsuch minor physical injury, by other than accidental means, which causes death,disfigurement, impairment of physical or emotional health, or loss or impairmentof any bodily function;

(ii) creates a substantial risk of physical injury to such minor byother than accidental means 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) (West 2004).

The State additionally alleged that both minors were neglected under section 2-3(1)(b) of the Act,which provides that a neglected child is one whose environment is injurious to his welfare. 705ILCS 405/2-3(1)(b) (West 2004). Neglect is a failure to exercise the care that the circumstancesjustly deserve and can be either a willful or an unintentional disregard of a parental duty. In reEdward T., 343 Ill. App. 3d 778, 794 (2003). An injurious environment is an amorphous conceptthat cannot be defined with particularity; accordingly, the specific circumstances of each casemust be reviewed. In re B.M., 248 Ill. App. 3d 76, 79 (1993). Neglect of one minor may betaken as evidence of neglect of the minor's sibling. In re Jerome F., 325 Ill. App. 3d 812, 818(2001).

The Public Guardian specifically contends that the trial court erred in failing to find theminors abused because Dr. Leonhardt's summary statement, which was admitted into evidence,was the only evidence that specifically addressed Gustavo's rib injuries. Dr. Leonhardtconcluded that the rib injuries could not have been caused by mishandling by Krystal or byGustavo's fall from Rocio's mother's bed. We disagree with the Public Guardian'scharacterization of the evidence. At trial, Carrasco's testimony established that Dr. Martinez hadexamined Gustavo's bone scans taken at Saint Anthony's Hospital. Those scans indicated thatGustavo had suffered fractured ribs. Carrasco testified that Dr. Martinez opined that Gustavo'sinjuries were not the result of abuse or neglect and that they could have been caused by Krystal. Carrasco also testified that the family's pediatrician, Dr. Glaab, who had interacted with Krystalseveral times and had advised Rocio, before Gustavo sustained his skull fracture, that Krystalshould not be left alone with Gustavo, also opined that all of Gustavo's injuries could have beencaused by Krystal. The court, therefore, was presented with conflicting opinions as to the causeof Gustavo's rib injuries. As the court pointed out, Dr. Leonhardt had not interacted withKrystal, who was described as a rough, active, large child, while Dr. Glaab had interacted withher several times in the past. Accordingly, we cannot say that the court's conclusion that theevidence did not establish probable cause that Gustavo and Krystal were abused was contrary tothe manifest weight of the evidence.

The Public Guardian further contends that the trial court erred in failing to find theminors neglected because, assuming Krystal caused Gustavo's injuries, the evidence presented attrial established probable cause that the minors' environment was injurious to their welfare. TheState agrees and additionally contends that the fact that Gustavo sustained several fractures in hisfirst five months of life indicates that his environment was injurious. The State reasons that theevidence that Gustavo was neglected created an unrebutted presumption that Krystal was alsoneglected.

In this case, Rocio testified that she had witnessed Krystal exhibiting inappropriatebehavior with Gustavo. Rocio testified that she had admonished Krystal that she could not treatGustavo in such a manner. Nonetheless, Krystal continued to be rough with her brother. Dr.Glaab also observed Krystal's active demeanor and advised Rocio not to allow Krystal to bealone with Gustavo. Carrasco testified that she had observed Rocio and Gustavo, Sr., interactwith the minors and had concluded that they were attentive, loving and caring parents. The trialcourt found Rocio and Carrasco to be credible witnesses. It further found that the evidence didnot indicate that Gustavo, and by extension Krystal, had been neglected. Given the widediscretion afforded the trial court in making a determination regarding neglect and its ability toobserve the demeanor and conduct of the parties and witnesses (In re Ashley F., 265 Ill. App. 3dat 425), in this case, we cannot say that the trial court's finding that the evidence did not establishprobable cause of neglect was contrary to the manifest weight of the evidence.

Finally, the Public Guardian contends that the trial court erred in denying its motion forreconsideration because the motion established that the Public Guardian had exercised duediligence in investigating the case and that the proposed addendum to Leonhardt's summarystatement was not cumulative.

"The purpose of a motion to reconsider is to bring to the court's attentionchanges in the law, errors in the court's previous application of existing law, andnewly discovered evidence that was not available at the time of the hearing.[Citation.] To justify a rehearing on the basis of newly discovered evidence, theremust be a showing of due diligence and a demonstration that justice has not beendone. [Citation.] The trial court's decision will not be reversed absent an abuse ofdiscretion." In re Ashley F., 265 Ill. App. 3d at 426.

When the State filed petitions for adjudication of wardship of Gustavo and Krystal onApril 6, 2005, it set April 27, 2005, as the date of the temporary custody hearing on the matter. On April 27, 2005, the Public Guardian was appointed as the minors' attorney and guardian adlitem. Thereafter, the court allowed the parties a brief recess to speak with their clients and theavailable witnesses. When the court recalled the case and commenced the hearing, the PublicGuardian did not object nor did it alert the court that it found Leonhardt's summary statementinadequate or that it would prefer to pass the case to enable it to interview or call Leonhardt as awitness. Accordingly, the Public Guardian did not demonstrate that it had exercised duediligence in attempting to obtain all pertinent opinions from Leonhardt. Accordingly, we findthat the trial court did not abuse its discretion in denying the Public Guardian's motion forreconsideration.

For the above-stated reasons, we affirm the trial court's judgment.

Affirmed.

CAMPBELL, P.J., and MURPHY, J., concur.