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No. 3--03--0710

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

The respondent, Angie L., is the mother of E. L. and Z. L.(minors). After an adjudicatory hearing, the minors were foundto be neglected by reason of an injurious environment. Followinga subsequent dispositional hearing, the trial court reserved aruling on unfitness, left the children in the custody of therespondent, and appointed the Department of Children and FamilyServices (DCFS) guardian. The respondent appeals. We affirm.

On October 21, 2002, the State filed a petition allegingthat the minors were neglected by reason of an injuriousenvironment. This petition contended that the minors'environment was injurious because: (a) the respondent's husband(and the minors' father) had committed sex offenses on two otherchildren; (b) the minors' father was a child pornographer and hadviewed photos of children in sexual acts; and (c) the respondentknew that the minors' father had been involved in childpornography and felt that this activity was not a problem.

On October 22, 2003, the court entered an arraignment order. That order instructed the respondent to cooperate with DCFS inany necessary counseling and also included an order of protectionwhich limited the father's contact with the minors to visitationsupervised by DCFS.

An adjudicatory hearing was held on July 3, 2003. PeoriaPolice Detective Michael Eddlemon testified that in October of2002, he was investigating allegations that the father hadsexually abused two minors. Eddlemon asked the father if he wasattracted to young children. The father responded that ifEddlemon asked the respondent, she would state that he thoughtthe most beautiful thing in the world was a naked 15-year-oldgirl. Additionally, the father indicated that he had a computeron which he viewed child pornography and liked looking atpictures of girls between the ages of 13 to 15.

Eddlemon also spoke to the respondent about her knowledge ofher husband's interest in child pornography. When confrontedwith her husband's statement about 15-year-old girls, therespondent did not seem surprised by the question and did notdeny that she knew of her husband's predilections. Instead, shestated that "there was a big difference between looking andtouching and there was a big difference between a 15-year-oldgirl and a 6-year-old girl." The respondent also told Eddlemonthat there was nothing illegal about looking at pictures of nakedgirls. When Eddlemon informed her that it was in fact illegaland also out of the norm to do so, the respondent stated thatthere were several versions of normal.

Eddlemon testified that when he and another officer laterexecuted a search warrant on the home of the father and therespondent, they found a laptop computer. After removing thecomputer from the home, several pictures of children involved insex acts were removed from the hard drive, printed out, andultimately placed into evidence. Eddlemon also testified that hefound a pornographic picture of the respondent, though thatpicture was not entered into evidence. It was Eddlemon'stestimony that this picture showed the respondent naked, inpigtails, and with a rose in her mouth. Finally, the Stateintroduced a certified copy of the father's conviction on twocounts of aggravated criminal sexual abuse and four counts ofchild pornography.

The respondent also testified, and denied that she ever knewher husband was looking at child pornography or told Eddlemonthat she was aware of that fact. She also denied that she everindicated or thought that looking at pictures of naked childrenwas permissible, but did admit to telling Eddlemon that there wasa difference between looking and touching. Lastly, therespondent stated that, other than the fact that her husband hadbeen convicted, she did not know whether he actually committedthe offenses for which he was charged.

At the close of evidence, the court heard and denied therespondent's motion for a finding as a matter of law as to thecount charging her with knowledge of her husband's involvement inchild pornography. The court denied that motion because: (1) therespondent did not make a "fairly animated response and a denial"of the father's comment about 15-year-old girls, and (2) thepicture of the respondent, as described by Eddlemon, was themirror image of one of the images of child pornography taken fromthe father's computer.

At the close of evidence, the trial court found that thepetition had been proved in its entirety, and found that theState had proven that the minors were in an injuriousenvironment. At a subsequent dispositional hearing, the trialcourt reserved a ruling on unfitness. The court appointed DCFSguardian, but specified that the children should remain placedwith the respondent. The respondent appeals.

II. ANALYSIS

A. Neglect

On appeal, the respondent first contends that the Statefailed to prove an injurious 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 trial courtwas presented with evidence tending to show that the respondentboth knew that her husband was involved in child pornography anddid not think that there was a problem with his looking at nakedchildren. The trial court did not find the respondent's attemptsto dispute this evidence credible. It is for the trial court tomake such credibility determinations, and we will not substituteour judgment for that of the trial court on such matters. Peoplev. Spann, 322 Ill. App. 3d 425, 773 N.E.2d 59 (2002). Therefore,we affirm the trial court's adjudication of neglect as to therespondent.

B. Reservation of Fitness

Next, we address the respondent's contention that the trialcourt abused its discretion when it reserved ruling on herfitness but, nevertheless, granted DCFS guardianship.

In fashioning a dispositional order, the overriding concernis the best interest of the child. In re Beatriz S., 267 Ill.App. 3d 496, 641 N.E.2d 953 (1994). The mandates of the trialcourt's dispositional order are reviewed under an abuse ofdiscretion standard. B.J., 316 Ill. App. 3d 193, 735 N.E.2d1058.

The respondent argues that pursuant to the requirements ofsection 2--27 of the Juvenile Court Act of 1987 (705 ILCS 405/2--27 (West 2002)), the court erred by failing to make a finding ofunfitness before granting DCFS guardianship. However, section 2--27 specifically requires that a finding of unfitness is requiredbefore (among other things) a minor may be placed with DCFS forcare and service. See 705 ILCS 405/2--27 (West 2002). It doesnot address the situation where custody remains with the parent,and only guardianship is granted to DCFS. Thus, the section 2--27 requirement of an unfitness finding does not apply to thiscase.

Section 2--23, on the other hand, specifically provides thata trial court may issue a dispositional order continuing theminors in the custody of their parents. 705 ILCS 405/2--23(1)(a)(1) (West 2002). Moreover, our courts have recognizedthat the trial court can generally split the guardianship andcustody of a minor. In re T.L.C., 285 Ill. App. 3d 922, 675N.E.2d 228 (1996). So long as custody remains with therespondent, we can perceive no error in also grantingguardianship with DCFS. Cf. T.L.C., 285 Ill. App. 3d 922, 675N.E.2d 228 (when guardianship and placement of child is placedwith DCFS, the trial court may not dictate exactly where custodymust be placed).

III. CONCLUSION

The judgment of the circuit court of Peoria County isaffirmed.

Affirmed.

LYTTON and SCHMIDT, JJ., concur.