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No. 3--03--0956

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE O'BRIEN delivered the OPINION of the court.

The respondent, Elmore R., is the father of the minors. Jennifer B. is the mother of the minors and the respondent's ex-wife. On June 5, 2003, the State filed a petition alleging thatthe minors were neglected by reason of an injurious environment. This allegation was based upon the fact that: (1) the respondentleft the minors with Jennifer B. while the respondent was servinga jail sentence, even though he knew Jennifer B. had previouslybeen found unfit; (2) the respondent had been experiencing mentalhealth problems; and (3) the respondent was convicted of domesticbattery in 2001, after he had obtained guardianship of theminors.

The children were placed in the temporary custody of DCFS,and an adjudicatory hearing was held on October 15, 2003. Evidence of the respondent's mental health history included thatin May of 2000, he reported feelings of depression and anxietylasting several months and had thoughts that he characterized asparanoia. At that same time, the respondent was prescribedpsychotropic medication. He was taken off that medication inSeptember of 2000.

Amy M. testified that she was married to the respondent from1998 until their divorce in 2002. The respondent exhibitedunusual behavior during their marriage, including telling herthat people were watching him. The respondent would keep thewindows of their residence covered and would turn the computermonitor toward the wall. He would also complain that George Bushwas following him and that there were rats in the house withcameras on their tails.

Raelynn Galassi, a DCFS child protection investigator,testified to a June 2003 conversation she had with A.R. about therespondent's behavior. A.R. reported that the respondent thoughtthat people in automobiles with tinted windows were takingpictures of him and that there were cameras in automobile trunks,hub caps, and stop lights. A.R. also indicated that therespondent believed that people could take pictures through thetelevision and that their house contained rats with cameras ontheir tails.

The evidence also established that Jennifer B. was foundunfit by reason of excessive corporal punishment in May of 1999and has remained unfit since that time. The respondent hadguardianship of the minors returned to him in October of 1999. In April of 2000, as part of an order discharging wardship, thecourt ordered that all visitation with Jennifer B. was to besupervised by the respondent or his designee. No unsupervisedvisits were to be allowed.

Amy M. testified that after their divorce, she went to courtto enforce a child support order for the child she had with therespondent. On May 16, 2003, the trial court found therespondent in contempt for his failure to pay the support andsentenced him to jail. In court, Amy M. agreed to care for A.R.and Ax.R. while the respondent was in jail. After his release onMay 19, the respondent called Amy M. to ask her to watch theminors for a few extra days while he searched for a job. AmyM.'s caller ID indicated that the respondent was calling from ahome shared by Jennifer B. and her mother.

On May 30, 2003, the respondent was once again sentenced tojail. That afternoon, DCFS investigator Galassi asked therespondent where he and the minors had been living prior to hisincarceration. The respondent indicated that the three had beenliving with Jennifer B. and her mother since he had been "kickedout" of his own residence a week before. The respondentindicated that the minors where still living there, and Galassirecommended that they be temporarily placed with Amy M. Therespondent agreed, and later that day the minors were removedfrom Jennifer B.'s home. A.R. confirmed that he, his brother andthe respondent had all been living at Jennifer B.'s house beforethe respondent went to jail. Later, Jennifer B. confirmed thatthe three had been living with her and her mother forapproximately one month.

Finally, the State introduced evidence that the respondentwas convicted of domestic battery at a time after custody andguardianship of the minors was returned to him.

After the close of evidence, the trial court found that thepetition had been proved in its entirety and that the minors werein an injurious environment. At a subsequent dispositionalhearing, the respondent was found unfit, the minors were madewards of the court, and DCFS was appointed guardian with the power to place. The respondent now appeals the neglect adjudication.

II. ANALYSIS

On appeal, the respondent contends that the State failed toprove an injurious environment in that: (1) there was no evidencethat the minors were harmed in any way by living in the housewhere their mother lived, and (2) the trial court improperlyrelied upon lay opinion testimony in determining that therespondent had mental health issues that contributed to aninjurious environment. We disagree.

Children are neglected if their environment is injurious totheir welfare. 705 ILCS 405/2--3(1)(b) (West 2002). "An'injurious environment' is an amorphous concept which cannot bedefined with particularity; therefore, each case should bereviewed considering the specific circumstances of that case." In re M.K., 271 Ill. App. 3d 820, 826, 649 N.E.2d 74, 79 (1995).Nevertheless, parents have a duty to keep their children freefrom harm; thus, their failure to provide a safe and nurturingshelter is statutory neglect. In re B.J., 316 Ill. App. 3d 193,735 N.E.2d 1058 (2000). It is the State's burden to prove anallegation of neglect by a preponderance of the evidence. In reN.B., 191 Ill. 2d 338, 730 N.E.2d 1086 (2000). That is, theState must demonstrate that an allegation of neglect is probablymore true than not. In re L.M., 319 Ill. App. 3d 865, 747 N.E.2d440 (2001). On review, we will not overturn a trial court'sfinding of neglect unless it is against the manifest weight ofthe evidence. L.M., 319 Ill. App. 3d 865, 747 N.E.2d 440. Afinding is against the manifest weight of the evidence only ifthe opposite conclusion is clearly evident. In re D.F., 201 Ill.2d 476, 777 N.E.2d 930 (2002).

We find that the trial court's adjudication of neglect wasnot against the manifest weight of the evidence. The respondenthad custody and guardianship of his children. He knew that theirmother had been found unfit based upon physical abuse and was tohave only supervised contact with the minors. Without regard tothe possibility of future abuse, the respondent moved his familyinto a house where the mother was living and left the children inthat house when he was to be incarcerated. This fact alonejustified the trial court's finding of neglect based upon aninjurious environment. See In the Interest of M.K., 271 Ill.App. 3d 820, 649 N.E.2d 74 (1995) (a substantial risk of harm isenough to justify a finding of an injurious environment). Therefore, we affirm the trial court's adjudication of neglectand find it unnecessary to address the respondent's additionalarguments.

III. CONCLUSION

The judgment of the circuit court of Peoria County isaffirmed.

Affirmed.

BARRY, J. and SCHMIDT, J. concurring.