Find Legal Information

_______________________________________________________________________________________________

_______________________________________________________________________________________________

JUSTICE McLAREN delivered the opinion of the court:

Respondent, W.B., a/k/a K.B., appeals from an order findinghis daughter, L.M., a/k/a L.B., neglected. The dispositional orderprovided that respondent was not to have any contact with L.M. orthe minor's mother, M.M. Respondent argues on appeal that thetrial court erred when it denied respondent's motion for a directedfinding and found that the neglect petition was proved by apreponderance of the evidence. We reverse.

Respondent was 26 years old when he began dating M.M., who was 16 years old. Nine months after respondent started dating M.M.,L.M. was conceived. L.M. was born on March 30, 1999. On July 14,1999, respondent was convicted of five counts of aggravatedcriminal sexual abuse of M.M. (720 ILCS 5/12--16(d) (West 1998)),and he was ordered not to have any contact with M.M. On July 15,1999, M.M. left L.M. in respondent's care. Because L.M. was leftin respondent's care, the State filed a petition on July 16, 1999,to adjudicate L.M. neglected. The petition was filed against bothrespondent and M.M. The basis for the neglect petition was thatL.M. had been left in an injurious environment. The State claimedthat L.M.'s environment was injurious to her welfare because shewas left in respondent's care and respondent was an untreated sexoffender, having been convicted of aggravated criminal sexual abuseof M.M. on July 14, 1999.

On August 27, 1999, respondent was sentenced to 36 months'probation for aggravated criminal sexual abuse, and he was orderedto obtain a sex offender evaluation within 30 days and follow allrecommendations. The probation order also provided, among otherthings, that respondent must support his dependents, not havecontact with M.M. for 12 months, and refrain from any contact withnonrelated females who are between 12 and 18 years old.

On November 4, 1999, the adjudication hearing was held. Atthe hearing, Detective Mark Ross Corbett testified that on July 15,1999, he participated in a surveillance of respondent's home. Theofficer conducted the surveillance because a warrant fordefendant's arrest had been issued for an unrelated matter. WhenOfficer Corbett arrived at respondent's house, he stayed in his carand did not see anyone around the house. However, within 10minutes he saw respondent exit his house carrying an infant. Officer Corbett approached respondent, apprehended respondent onthe warrant, and took protective custody of the infant, L.M. Oncross-examination, Officer Corbett testified that he did not seerespondent harm L.M. in any way, and the officer stated that hecould not remember whether respondent told him that there wassomeone in the house who could care for L.M. after Officer Corbetttook respondent into custody.

Tim Rossi testified that on July 15, 1999, he was aninvestigator with the Illinois Department of Children and FamilyServices. Rossi was called on that date because L.M. had beentaken into protective custody by the police and was in need ofplacement. During his investigation, Rossi talked with M.M. M.M.told Rossi that on July 15, 1999, she took L.M. to see respondentfor an indefinite period of time because L.M. needed to bond withrespondent. M.M. knew that respondent had been convicted ofaggravated criminal sexual abuse on July 14, 1999, but M.M. did notbelieve that respondent posed a risk to either herself or L.M. Rossi testified that he did not speak with respondent, and Rossistated that he did not believe that respondent had sought treatmentas a sex offender.

Respondent moved for a directed finding, arguing that theState failed to prove that L.M.'s environment was injurious to herwelfare. The court denied the motion, finding that respondent wasa sex offender at the time he was caring for L.M.

Respondent testified that M.M. brought L.M. to his house onJuly 15, 1999. Respondent's 17-year-old cousin and respondent'sbarber were in the house when M.M. arrived. At around 4 p.m.,respondent was walking outside with L.M. when the police arrestedhim. Respondent's cousin was in the house at that time, andrespondent testified that he told a detective that the cousin couldwatch L.M. until respondent's sister came home from work.

The court found that the petition to adjudicate L.M. aneglected minor had been proved by a preponderance of the evidence. Specifically, the court stated that L.M. was neglected because shewas left in respondent's care and respondent was an untreated sexoffender, having been convicted of aggravated criminal sexual abusethe day before L.M. was taken into protective custody.

Respondent filed a motion for a new trial, arguing that theState failed to prove the allegation of neglect by a preponderanceof the evidence and that the trial court erred when it deniedrespondent's motion for a directed finding. The trial court deniedthe motion, adjudicated L.M. neglected, and ordered respondent notto have contact with L.M. or M.M. until the court entered acontrary order. Respondent filed a motion to reconsider, raisingthe same issues he presented in his motion for a new trial. Thetrial court denied respondent's motion, and the court awarded M.M.the guardianship of L.M. This timely appeal followed.

Respondent argues that the trial court erred when it deniedhis motion for a directed finding and found that the State provedneglect by a preponderance of the evidence. Because these issuesare intricately related, we will address the issues together. Whena motion for a directed finding is made, the trial court mustdetermine whether the plaintiff (State) has made out a prima faciecase and then weigh the evidence, including the evidence thatfavors the defendant (respondent). Orbeta v. Gomez, 315 Ill. App.3d 687, 690 (2000). If the trial court finds after weighing theevidence that the plaintiff's prima facie case has been negated,the court should grant the defendant's motion for a directedfinding and enter a judgment for the defendant. Orbeta, 315 Ill.App. 3d at 690. On appeal, the reviewing court will not disturbthe trial court's finding unless it is against the manifest weightof the evidence. Orbeta, 315 Ill. App. 3d at 690. A finding isagainst the manifest weight of the evidence if the facts clearlyshow that the trial court should have reached the opposite result. In re N.B., 191 Ill. 2d 338, 346 (2000).

In a proceeding to adjudicate a minor neglected, the Statemust establish neglect by a preponderance of the evidence, which isproof that any finding of neglect is more probably true than nottrue. In re N.B., 191 Ill. 2d at 343. An injurious environment isa basis for a finding of neglect (705 ILCS 405/2--3(1)(b) (West1998)), and the term "injurious environment" is an amorphousconcept that cannot be defined specifically. In re N.B., 191 Ill.2d at 346. However, courts have interpreted "injuriousenvironment" to include a breach of the parents' duty to provide asafe and nurturing shelter for their children. In re N.B., 191Ill. 2d at 346. Because rulings in cases involving neglect andinjurious environment are fact-driven, a reviewing court will onlyreverse the trial court's judgment if the judgment is against themanifest weight of the evidence. In re N.B., 191 Ill. 2d at 346.

Here, the trial court found that L.M. was a neglected minorbecause she was left in respondent's care on July 15, 1999. WhenL.M. was left in respondent's care, respondent, having had a sexualrelationship with L.M.'s minor mother, was considered a sexoffender. At the hearing, no evidence was presented thatrespondent harmed L.M. in any way. Thus, the only basis upon whichthe trial court found neglect was the fact that respondent was asex offender and was caring for L.M. We determine under thecircumstances presented in this case that respondent's status as asex offender alone, in the absence of other factors, does notestablish an injurious environment. Therefore, we conclude thatthe trial court's ruling denying respondent's motion for a directedfinding and its order adjudicating L.M. neglected should bereversed.

We note in reaching this conclusion that courts in otherjurisdictions have found that a father's sex offender statuswithout more cannot form the sole basis for restricting thefather's parental rights. See State v. Coreau, 651 A.2d 319, 320(Me. 1994) (father who committed heinous sex crime againstnonrelated 14-year-old girl could not be prohibited contact withhis minor children as a condition of his probation); In re Cruz,164 Or. App. 178, 188, 990 P.2d 922, 927 (1999) (reviewing courtdetermined that the father, who was a sex offender and had affairswith teenage girls, was not a threat to his minor daughters). Moreover, courts have recognized that the mere fact that an adultmale fathers a child with a minor cannot be the only basis fordenying the father contact with that child. See In re Brandie W.,157 Cal. App. 3d 110, 114, 203 Cal. Rptr. 537, 540 (1984) (the bestinterests of the child are served when an adult father, who couldhave been prosecuted for statutory rape against the minor mother,is allowed visitation with the child that was born because of theaffair); cf. E.R. v. D.T, 77 Misc. 2d 242, ___, 353 N.Y.S.2d 612,615 (1974) (reviewing court recognized a father's right to visit achild born out of wedlock but denied the 61-year-old fathervisitation given the father's age and the animosity between the 61-year-old father and the parents of the 13-year-old mother).

The State argues that the trial court's order should beaffirmed because evidence that respondent sexually abused anotherminor, M.M., is sufficient to establish an injurious environment. The cases the State relies on in making its argument are clearlydistinguishable from the facts presented in this case. Specifically, the cases the State cites involved the father abusingchildren who were under the father's care. See In re M.D.H., 297Ill. App. 3d 181, 189-90 (1998) (minor's environment could beinjurious based solely on the fact that father molested the minor'sbrother for whom the father cared); In re M.K., 271 Ill. App. 3d820, 827 (1995) (when father abuses his own children the court neednot wait until other children under the father's care are harmedbefore removing the other children from the father's home); In reA.D.W, 278 Ill. App. 3d 476, 482 (1996) (father's daughter'senvironment was injurious based on fact that father had fondled thebreasts of his stepdaughter). Here, in contrast to the cases citedby the State, respondent did not sexually abuse a minor in hiscare. Rather, respondent was convicted of sexually abusing a minorto whom he was not related, with whom he did not live, and withwhose care he was not entrusted. Given these distinguishing facts,we determine that the State's argument lacks merit.

For the reasons given, the judgment of the circuit court ofLake County is reversed.

Reversed.

GEIGER and BOWMAN, JJ., concur.