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No. 3--04--0566
(Consolidated with No. 3--04--0567)

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE McDADE delivered the opinion of the court:

FACTS

On September 20, 2003, the respondent went to the FamousBarr department store in Peoria with a 16-year-old girl and therespondent's four-year-old son, D.R. Over a period ofapproximately 30 minutes, the respondent selected articles ofadult clothing and handed them to the 16-year-old, who removedthe price tags and piled the clothes up on the floor. Throughoutthis period, store security watched them through closed-circuitcameras. The pile of clothes was out of the cameras' view,however, so the store manager walked to the area and observed thepile.

After approximately 30 minutes, the respondent placed thearticles of clothing in two Famous Barr bags. The threeattempted to walk out of the store with the clothes; the 16-year-old carried one bag and D.R. carried the other bag. Afterexiting the store, store security stopped them. Upon searchingthe bags, store security recognized the clothes as the ones seenthrough the closed-circuit cameras. The total value of thestolen items was $470. The respondent, pregnant with T.R. at thetime, was arrested and handcuffed in the presence of D.R.

On November 14, 2003, the State filed a petition, allegingthat D.R. was neglected. The State argued that the minor was inan injurious environment, as evidenced by the incident in whichthe respondent had D.R. assist her in committing retail theft. On January 22, 2004, the State filed another petition, allegingthat T.R., who was born on October 17, 2003, was neglected forthe same reason. The circuit court consolidated the two actions.

An adjudicatory hearing was held on April 2, 2004, in whicha store security member testified to the aforementioned incident. The State also entered into evidence two recordings made by theclosed-circuit cameras. At the end of the hearing, the circuitcourt adjudged both D.R. and T.R. neglected. The circuit courtheld a dispositional hearing on June 25, 2004, and found that itwas in the minors' best interests to be made wards of the court.

The respondent filed notices of appeal from thedispositional orders of June 25, 2004. Nowhere on these fill-in-the-blank forms did the respondent indicate her intent tochallenge the adjudicatory orders of April 2, 2004. On appeal,the respondent argues that the circuit court (1) erroneouslyadjudged D.R. neglected because proof of theft alone isinsufficient to establish an injurious environment; and (2)erroneously adjudged T.R. neglected because proof of neglect asto D.R., without more, is insufficient to establish that T.R. wassubjected to an injurious environment.

ANALYSIS

JURISDICTION

Initially, the State contends that this court lacksjurisdiction to hear the respondent's argument because therespondent did not specify her intent to challenge the neglectadjudications in her notices of appeal. We disagree.

Supreme Court Rule 303(b)(2) (155 Ill. 2d R. 303(b)(2))requires a notice of appeal to "specify the judgment or partthereof or other orders appealed from and the relief sought fromthe reviewing court." In Burtell v. First Charter Service Corp.,76 Ill. 2d 427, 394 N.E.2d 380 (1979), our supreme court noted that "the appeal from a subsequent final judgment 'draws inquestion all prior non-final orders and rulings which producedthe judgment.' [Citation.]" Burtell, 76 Ill. 2d at 433, 394N.E.2d at 382. Furthermore, "it is generally accepted that anotice of appeal is to be liberally construed." Burtell, 76 Ill.2d at 433, 394 N.E.2d at 382. Burtell therefore approves (or atleast allows) a less-than-strict reading of Rule 303(b)(2)'slanguage.

In support of its argument, the State cites In re J.P., 331Ill. App. 3d 220, 770 N.E.2d 1160 (2002), for the propositionthat an appellate court lacks jurisdiction if the respondentfailed to include an intent to challenge a neglect adjudicationwithin a notice of appeal from a dispositional order.

In J.P., two children were adjudicated abused and neglectedand made wards of the court at the dispositional hearing. Thefather filed a notice of appeal from both the adjudication orderand the dispositional orders. The mother, however, filed anotice of appeal from the dispositional orders only. On appeal,the mother attempted to argue that the adjudication order wasagainst the manifest weight of the evidence.

The court dismissed the mother's adjudicatory order claimson jurisdictional grounds:

"[W]e note that the notice of appeal filed by [the mother]specifies that appeal is taken solely from the November 30,1999 dispositional order. Illinois Supreme Court Rule303(b)(2) (155 Ill. 2d R. 303(b)(2)) requires a notice ofappeal to 'specify the judgment or part thereof or otherorders appealed from and the relief sought from thereviewing court.' When an appeal is taken from a specifiedjudgment, the appellate court acquires no jurisdiction toreview other judgments or parts of judgments not specifiedor fairly inferred from the notice. [Citation.] Because[the mother's] notice of appeal does not specify appeal istaken from the court's June 8, 1999 adjudication order, weare without jurisdiction to consider her claims with respectto this order." J.P., 331 Ill. App. 3d at 234, 770 N.E.2dat 1171.

A similar situation arose in In re F.S., 347 Ill. App. 3d55, 806 N.E.2d 1087 (2004). There, F.S. was adjudged abused andneglected by F.S.'s legal guardian and custody was taken from theguardian at the dispositional hearing. The guardian filed anotice of appeal from the adjudicatory order, but not thedispositional order. On appeal, the guardian attempted to arguethat the dispositional order was against the manifest weight ofthe evidence.

The court disposed of the guardian's dispositional orderclaim on jurisdictional grounds, and cited J.P. with approval:"In essence, the J.P. court found that, based on the notice ofappeal, which specified that appeal was being taken from thedispositional order, it could not fairly infer the adjudicationorder from the notice of appeal." F.S., 347 Ill. App. 3d at 70,806 N.E.2d at 1099. The F.S. court, however, considered otherapplicable case law that the J.P. court did not consider.

The F.S. court noted that an appellate court may retainjurisdiction if the unspecified judgment is a "'step in theprocedural progression leading'" to the judgment specified in thenotice of appeal. F.S., 347 Ill. App. 3d at 69, 806 N.E.2d at1098, quoting Burtell v. First Charter Service Corp., 76 Ill. 2d427, 394 N.E.2d 380 (1979). In its analysis, the F.S. courtstated:

"In the case at bar, the adjudication order cannotdirectly relate back to the disposition order because theadjudication order preceded the disposition order. By itsvery nature, the disposition order follows not only theadjudication order, but also a subsequent dispositionalhearing, and cannot be said to be 'a "step in the proceduralprogression leading" to the [adjudication order that was]specified in the notice of appeal.'" In re F.S., 347 Ill.App. 3d 55, 806 N.E.2d at 1098, quoting Burtell, 76 Ill. 2d427, 394 N.E.2d 380.

One district of the State appellate court is not bound bythe decision of another district unless a compelling reasonexists to so follow when the facts and circumstances are similar. In re Will County Grand Jury, 152 Ill. 2d 381, 604 N.E.2d 929(1992). We believe that the question of whether a judgment is"fairly inferred" from the notice of appeal must include aconsideration of whether the unspecified judgment is a step inthe procedural progression leading to the judgment specified inthe notice of appeal, as stated by our supreme court in Burtell. Had the J.P. court applied the Burtell analysis to its facts, webelieve the J.P. court would have reached the oppositeconclusion. Because we disagree with the J.P. analysis, we donot find any compelling reason to follow the first district'sdecision in J.P. Accordingly, we decline to adopt the J.P.analysis.

In In re J.J., 316 Ill. App. 3d 817 (2000), this courtpreviously found a lack of jurisdiction to review claimspertaining to an adjudicatory hearing. One of the bases thecourt cited for its finding was that the appellant had notspecified the adjudicatory order in her notice of appeal. However, unlike the instant case, the appellant in In re J.J.failed to file a timely appeal from the dispositional order. Although we did not specifically say so at that time, such afiling would have been sufficient to vest the court withjurisdiction. This observation is consistent with the court'sstatement that: "In a juvenile case, the adjudicatory order isgenerally not appealable because it is not a final order.[Citation.] Rather, claims pertaining to the adjudicatory hearingare appealable upon entry of the court's dispositional order,which is final." In Re J.J., 316 Ill. App. 3d at 825-26.

The statutes invoked by this case show that an adjudicatoryorder is a step in the procedural progression leading to thedispositional order. See Burtell, 76 Ill. 2d 427, 394 N.E.2d380. At the adjudication hearing, the court is to determinewhether the minor is abused, neglected, or dependent. 705 ILCS405/2--21(1) (West 2002). If the court finds the minor isabused, neglected, or dependent, the court is to state thefactual basis in writing and schedule a dispositional hearingwithin 30 days of the finding. 705 ILCS 405/2--21(2) (West2002). At the dispositional hearing, the court is to determinewhether it is in the best interests of the abused, neglected, ordependent minor to be made a ward of the court. 705 ILCS 405/2--22(1) (West 2002). The dispositional order that follows from thehearing determines the placement of the abused, neglected, ordependent minor. 705 ILCS 405/2--23 (West 2002). Because anadjudicatory hearing and subsequent order finding a minor abused,neglected, or dependent are prerequisites to a dispositionalhearing and order, we hold that an adjudicatory order is a stepin the procedural progression leading to the dispositional order. See Burtell, 76 Ill. 2d 427, 394 N.E.2d 380.

Additionally, we note that "[u]nless the appellee isprejudiced thereby, the absence of strict technical compliancewith the form of the notice is not fatal, and where thedeficiency in the notice is one of form only, and not ofsubstance, the appellate court is not deprived of jurisdiction." Burtell, 76 Ill. 2d at 434, 394 N.E.2d at 383. In Burtell, anotice of appeal that did not specify an earlier judgment but didspecify a later judgment was held sufficient to confer appellatejurisdiction because the earlier judgment was a step in theprocedural progression leading to the later judgment. Burtell,76 Ill. 2d 427, 394 N.E.2d 380.

Like the notice of appeal form in Burtell, the form in thiscase omits the previous judgment and specifies the laterjudgment. The form in this case is a basic, fill-in-the-blankform apparently used for both civil and criminal appeals. Theform does not have a blank for the relief sought by theappellant. The form does contain a blank for "Date of Judgmentor Order," in which the date of the dispositional orders arewritten, but not the date of the adjudicatory orders.

We further note that, subject to an exception not applicablehere, an adjudicatory order is not a final and appealable order. In re M.J., 314 Ill. App. 3d 649, 732 N.E.2d 790 (2000); 134 Ill.2d R. 662(a). Thus, it would be illogical for the respondent toinclude the date of the adjudicatory orders in the "Date ofJudgment or Order" blanks on the notice of appeal forms. Accordingly, the notice of appeal form in this case contains anerror of form rather than substance. See Burtell, 76 Ill. 2d427, 394 N.E.2d 380.

Lastly, we note that the State has not alleged any prejudiceif we find jurisdiction to hear the respondent's claims, nor dowe perceive how the State could be prejudiced thereby. The Stateis clearly aware that an adjudicatory order is a prerequisite toobtaining a dispositional order, and that the adjudicatory orderitself may not be appealed.

Given the interests at stake, the structure of the notice ofappeal form, and the fact that an adjudicatory order is both anonappealable order and a step in the procedural progressionleading to the dispositional order specified in the notice ofappeal, we find that the respondent's intent to challenge theneglect adjudication can be fairly inferred from her notices ofappeal. Therefore, we have jurisdiction to hear the respondent'sarguments.

NEGLECT AS TO D.R.

The respondent first argues that the circuit courterroneously adjudged D.R. neglected because proof of theft aloneis insufficient to establish an injurious environment. Wedisagree.

Section 2--3(1)(b) of the Juvenile Court Act of 1987 (705ILCS 405/2--3(1)(b) (West 2002)) provides that a neglected minorincludes "any minor under 18 years of age whose environment isinjurious to his or her welfare." An "injurious environment" hasno static definition and must be defined in terms of theparticular facts of a case. In re M.K., 271 Ill. App. 3d 820,649 N.E.2d 74 (1995). In general, a parent neglects her childwhen the parent's conduct exhibits the "failure to exercise thecare that circumstances justly demand and encompasses both wilfuland unintentional disregard of parental duty." M.K., 271 Ill.App. 3d at 826, 649 N.E.2d at 79. We will not disturb a circuitcourt's neglect determination unless it is against the manifestweight of the evidence. M.K., 271 Ill. App. 3d 820, 649 N.E.2d74. A determination is against the manifest weight of theevidence when the record clearly supports the opposite result. M.K., 271 Ill. App. 3d 820, 649 N.E.2d 74.

Our review of the record reveals that the circuit courtheard extensive testimony regarding the retail theft incident. The evidence included videotapes that show the respondentwillfully engaging in the theft with the 16-year-old, and therespondent willfully making D.R. an accomplice by allowing him tocarry a bag containing the clothes they were attempting to steal. In its determination, the circuit court noted that the respondentattempted to use D.R. as a diversion as well as an accomplice ina criminal act, and that the respondent was arrested andhandcuffed in the presence of D.R. Under these circumstances, wefind that the evidence of the theft and the respondent'sinclusion of D.R. in the crime is sufficient to establish aninjurious environment based on a wilful disregard of parentalduty. Therefore, we find that the circuit court's neglectdetermination in regard to D.R. is not against the manifestweight of the evidence.

NEGLECT AS TO T.R.

The respondent next argues that the circuit courterroneously adjudged T.R. neglected because proof of neglect asto D.R., without more, is insufficient to establish that T.R. wassubjected to an injurious environment. We agree.

Section 2--18(3) of the Juvenile Court Act of 1987 (705 ILCS405/2--18(3) (West 2002)) provides that the evidence of neglectof one minor is admissible as evidence of neglect in regard toany other minor for whom the respondent is responsible. Suchevidence is not per se proof of "anticipatory neglect," however,as each case must be reviewed contextually. J.P., 331 Ill. App.3d 220, 235, 770 N.E.2d 1160, 1172. In determining whether suchevidence establishes anticipatory neglect, the circuit court"should consider the current care and condition of the child inquestion and not merely the circumstances that existed at thetime of the incident involving the child's sibling." J.P., 331Ill. App. 3d 220, 235, 770 N.E.2d 1160, 1172.

Our review of the record reveals that the circuit courtbased its finding that T.R. was neglected solely upon the retailtheft incident involving D.R. Nowhere in the record is there anyindication that the State presented the court with any evidenceconcerning the current care and condition of T.R. forconsideration in reaching its determination. Under thesecircumstances, we find that the circuit court erred when it foundT.R. neglected based on anticipatory neglect and that portion ofits judgment must be reversed.

The judgment of the circuit court of Peoria County isaffirmed in part and reversed in part.

Affirmed in part and reversed in part.

HOLDRIDGE, P.J., and SCHMIDT, J., concur.