In re Chyna B.

Case Date: 06/17/2002
Court: 4th District Appellate
Docket No: 4-01-1159 Rel

NO. 4-01-1159

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT



In re: CHYNA B., a Minor,
THE PEOPLE OF THE STATE OF ILLINOIS,
                        Petitioner-Appellee,
                        v.
JAMES BRYANT,
                        Respondent-Appellant.
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Appeal from
Circuit Court of
Champaign
County
No. 01JA68

Honorable
Ann A. Einhorn
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Judge Presiding.


PRESIDING JUSTICE McCULLOUGH delivered the opinion of thecourt:

Respondent father, James Bryant, appeals from the ordersof the Champaign County circuit court finding his daughter, ChynaB. (born July 24, 2001), neglected, making her a ward of the court,and placing her in the custody and guardianship of the IllinoisDepartment of Children and Family Services (DCFS). Respondentmother, Nicole Wood, is not a party to this appeal. The issues onappeal are whether (1) this appeal is moot because the proceedingsagainst respondent father were terminated with custody andguardianship returned to him; (2) the finding that the minor wasneglected was against the manifest weight of the evidence; (3) thetrial court's findings in support of the removal of custody fromrespondent father were against the manifest weight of the evidence;and (4) the dispositional order resulted from an abuse of discretion in that it improperly contained directives to respondentfather that were wholly unrelated to the basis for the finding ofneglect. We affirm.

On April 14, 2002, this court issued a rule to show causefor respondent father to demonstrate why this appeal should not bedismissed as moot because, on April 2, 2002, the proceedingsagainst respondent father were terminated with custody andguardianship of the minor returned to him. On May 2, 2002,respondent father filed a response to the rule to show cause, andthe rule and the response thereto were taken with the case. Because of the possible collateral legal consequences to respondentfather in the context of juvenile proceedings (see 705 ILCS 405/2-18(3) (West 2000) (prior neglect adjudication is admissible insubsequent proceedings); 705 ILCS 405/2-33 (West 2000) (a supplemental petition may be filed reinstating wardship and reopening thecase)), we agree with respondent father that this appeal should notbe dismissed for mootness (see In re Christenberry, 69 Ill. App. 3d565, 566-67, 387 N.E.2d 923, 925 (1979)).

On September 4, 2001, the State filed a petition forwardship alleging Chyna B. to be neglected on grounds that herenvironment was injurious to her welfare when she resided withrespondent mother because (1) she was exposed to substance abuseand (2) respondent mother had failed to correct the conditions thatresulted in a prior adjudication of unfitness to exercise guardianship and/or custody of the minor's sibling. 705 ILCS 405/2-3(1)(b)(West 2000). Following the adjudicatory hearing conducted October29, 2001, the trial court found count II proved, but not count I. On November 3, 2001, the court entered a written adjudicatory orderfinding Chyna B. a neglected minor.

Respondent first challenges the finding of neglectbecause it was based on the actions of only the other parent. Respondent father relies on In re S.S., 313 Ill. App. 3d 121, 728N.E.2d 1165 (2000).

A minor is neglected if her environment is injurious toher welfare. 705 ILCS 405/2-3(1)(b) (West 2000). Respondentfather does not dispute that respondent mother created an injuriousenvironment for Chyna B. Instead, he argues that a finding ofneglect as to respondent mother should not be attributable to him,as no evidence suggested his neglect of the child. We disagree andfind S.S. distinguishable.

In this case, the evidence presented at the adjudicatoryhearing established that, in a juvenile proceeding involving anolder child of respondent mother, the primary issue was respondentmother's substance abuse. As to Chyna B., DCFS child protectioninvestigator Sheree Foley responded to the August 29, 2001, hot-line report of lack of supervision and risk of harm to Chyna B. The allegation was that respondent mother had fallen asleep orpassed out while feeding the child so that the child almost fellout of her arms. Respondent mother informed Foley that she hadbeen "clean" for the prior six months, although acknowledging thatshe had tested positive for cocaine in March 2001 and throughouther pregnancy. The child was born clean of drugs. Respondentmother had been required to do "drops," i.e., tests, because shewas on probation. Respondent father told Foley that respondentmother had a long history of substance abuse and had been usingdrugs throughout the time they had been living together and caringfor the child. Respondent father found the child in the arms ofrespondent mother, with the child screaming and almost falling outof her arms. He told Foley that respondent mother appeared to beunconscious. Foley learned that respondent father was an active,participating parent in the child's life.

Respondent father testified that, at the time of theadjudicatory hearing, he lived alone. He started going out withrespondent mother about three years before, but they had an on-and-off relationship. Respondent mother told him of the pregnancy inNovember 2000. Respondent mother then came to stay with him for ashort while and subsequently went into a rehabilitation center inPeoria for her substance abuse. In December 2000, respondentmother told him she had substance-abuse problems with cocaine. Respondent mother's rehabilitation was terminated in mid-January. Respondent mother told respondent father that she had refused tofollow a directive and was discharged. In February 2001, respondent father went to Delaware to assist in caring for his illfather. He did not live with respondent mother for the entireduration of the pregnancy, but he was living with her when thechild was born on July 24, 2001. He continued to live with heruntil the end of August 2001. After respondent mother and thechild came home from the hospital, respondent father was concernedthat respondent mother was having a problem with prescriptiondrugs. One of the painkillers she was using was methadone. Henoticed respondent mother was very lethargic, her mind was notsharp, and her speech was slurred on occasion. Respondent motherseemed to be "okay" most of the time that she cared for Chyna B.,but most of the time he took care of the child. He had suspicionsabout leaving Chyna B. alone with respondent mother which laterbecame concerns. At 1:30 a.m. on August 27, 2001, he awoke to thebaby's screams. This was not crying, but a very disturbed noise. When he got to the living room, he observed respondent mother in achair. In spite of the child's screaming, respondent mother wasnot awake. Respondent mother was not holding the child in aposition to properly support the child's head. When the babystarted to slip, respondent father ran over to grab the baby. Respondent father testified that, when he was out of the house forwork, "others" were brought in to help respondent mother with thechild. He usually fed and cared for the child before going towork. Respondent father had gone with respondent mother to thefirst appointment with the pediatrician regarding her high riskpregnancy because respondent mother had been carrying twins and hadmiscarried one because of cocaine abuse during the pregnancy.

Registered nurse Suzanne Eades testified that she wasemployed by the Champaign-Urbana Public Health District and was afriend of respondent mother. On random occasions, Eades wouldvisit the respondents' home three to four times per week for one tosix hours per visit. As a registered nurse, Eades was a mandatedreporter and observed nothing that caused her to feel a need toreport. She was present when respondent mother flushed somemethadone down the toilet because she was concerned that she may bebecoming addicted to methadone. That occurred sometime in August2001. The testimony of Eades, and all other witnesses who hadobserved respondent father with Chyna B., indicated that respondentfather was a quite capable and caring parent.

The trial court's finding of neglect will not beoverturned on appeal unless it is contrary to the manifest weightof the evidence. In re A.P., 179 Ill. 2d 184, 204, 688 N.E.2d 642,652 (1997). The reviewing court does not reassess witnesscredibility or reweigh the evidence and will not overturn the trialcourt's findings merely because it would have reached a differentconclusion. See In re B.J., 316 Ill. App. 3d 193, 199, 735 N.E.2d1058, 1064 (2000).

In S.S., the determination of neglect focused on the pastneglect and abuse of an older sibling by the father; the oldersibling had died. The court found that (1) no evidence showed thatthe mother disregarded a DCFS protection plan concerning the oldersibling; (2) domestic-violence counseling had resolved the priordomestic-violence issues; (3) no evidence showed anything themother did or failed to do in connection with the sibling's deaththat created a substantial risk to S.S.; (4) the parents no longerlived together; and (5) the mother was not allowing unauthorizedvisits by the father with S.S. or leaving S.S. unattended, and ifthe custody was returned, would not allow the father to visitwithout being present. In re S.S., 313 Ill. App. 3d at 128-31, 728N.E.2d at 1171-73. The court concluded that there was no reason tofind that the mother neglected S.S. In re S.S., 313 Ill. App. 3dat 132-33, 728 N.E.2d at 1173.

By comparison, in this case, respondent father was awareof respondent mother's prior cocaine problem, understood that sheused cocaine during the pregnancy, knew respondent mother washaving problems with prescribed medication, and was suspiciousabout respondent mother's abilities to care of Chyna B. Nevertheless, respondent father continued to allow respondent mother tocare for the child without his supervision and presence. The factthat respondent father arrived in the nick of time to save Chyna B.from serious injury on one occasion does not remove respondentfather's responsibility for creating the injurious environment. Itwas unnecessary for the trial court to find that Chyna B. wasneglected on the basis of any action or inaction by respondentfather. Chyna B. fit the definition of "any minor under 18 yearsof age whose environment is injurious to his or her welfare" (705ILCS 405/2-3(1)(b) (West 2000)) by reason of respondent mother'sactions and respondent father's inactions in failing to correct theconditions of which he was aware. A minor child may be foundneglected even though the primary fault for creating the injuriousenvironment rests with one parent. The finding of neglect in thiscase is not against the manifest weight of the evidence.

Respondent father further argues that, even if theadjudication of neglect is affirmed, the dispositional order shouldbe reversed. Respondent father challenges the sufficiency of theevidence to support the trial court's finding that he was unfit andunable to care for the child.

The trial court, upon determining and putting in writingthe factual basis, may commit the minor to DCFS if it determinesthe parent is unable, for some reason other than financialcircumstances alone, to care for, protect, train, or discipline theminor and that the health, safety, and best interests of the minorwill be jeopardized if the minor remains in the custody of theparent. 705 ILCS 405/2-27(1) (West 2000). In this case, the trialcourt found respondent father unfit and unable to care for Chyna B. However, a review of the trial court's findings in itsdispositional order, findings rendered orally and in writing atprior hearings, and the entire record of these proceedings does notshow respondent father to be unfit.

At the dispositional hearing conducted November 26, 2001,the trial court considered the dispositional report, as correctedby the parties, and all evidence and stipulations adduced in theearlier hearings. No witnesses testified at the dispositionalhearing.

The dispositional report prepared by DCFS on November 20,2001, stated that respondent father was frequently sent out of townfor his job. During the busiest season for respondent father'swork, he was not always able to make weekly visits and had toreschedule twice. More recently, respondent father was able tovisit more frequently, and he informed DCFS that when the busyseason was over he would be able to see Chyna B. every day. Nevertheless, although the trial court authorized overnight visits,respondent father could not take advantage of that privilege due tohis work schedule and his plans for the Thanksgiving holiday. Indeed, at the shelter-care hearing, respondent father had askedthe trial court to take custody of Chyna B. for the next two orthree months because his job required him to be out of town.

These facts support the trial court's finding thatrespondent father was unable, for reasons other than financialcircumstances alone, to care for the minor. The grounds are statedin the disjunctive in the statute and any one of them will supportthe trial court's removal of custody from respondent father. 705ILCS 405/2-27(1) (West 2000). The trial court did not find thatrespondent father was unwilling to care for the child.

At the dispositional hearing, the question is notnecessarily one of unfitness of the parent but rather what is inthe best interest of the child. The evidence of respondentfather's inability to take care of Chyna B. during his job's busyseason supports a finding that it was in her best interests toremove custody from him. The "unanswered questions" of the trialcourt about respondent father's ability to parent were relevant toa determination of whether, for the protection of the child,custody should initially be removed from respondent father pendinga determination of the answers to those questions. Therefore, thetrial court's finding that removal of custody from respondentfather was in Chyna B.'s best interests was not against themanifest weight of the evidence, and its removal of custody fromrespondent father was not an abuse of discretion. See In re J.J.,327 Ill. App. 3d 70, 77, 761 N.E.2d 1249, 1255 (2001) (child's bestinterests are superior to all other factors even if the parent isnot found to be unfit).

Finally, respondent father contends that some conditionsincluded in the dispositional order were improper. Thedispositional order required respondent father to submit to analcohol- and drug-usage evaluation and to successfully complete anyrecommended counseling, rehabilitation, or treatment. He was alsorequired to complete a parenting education and instruction courseand demonstrate appropriate parenting skills, including supervision, limit setting, discipline, and interaction with the minor. The order also requires respondent father to attend all schoolconferences.

The trial court's order need not be limited to thesituation that caused the minor's removal or the conditionsexisting at that time because the conditions triggering removal arenot the only conditions a parent needs to address to achievereunification. See In re C.N., 196 Ill. 2d 181, 213-14, 752 N.E.2d1030, 1048-49 (2001). Serious conditions may come to lightfollowing removal, and a relatively minor incident could besymptomatic of more profound problems. C.N., 196 Ill. 2d at 214,752 N.E.2d at 1049. Although the conditions of a dispositionalorder need not relate solely to the grounds for adjudication ofwardship, there must be some basis in the evidence for them, andthe propriety of the conditions of the dispositional order arereviewed on an abuse of discretion standard. In re J.H., 212 Ill.App. 3d 22, 28-31, 570 N.E.2d 689, 692-94 (1991).

Substance abuse was the underlying cause for theinjurious environment in this case. The respondent father wasaware of the substance abuse by the mother and the possible harm tothe child. The trial court's inclusion of a requirement thatrespondent father submit to an alcohol- and drug-usage evaluationwas not an abuse of discretion.

In addition, the inclusion of the condition thatrespondent father attend school conferences was not an abuse ofdiscretion. Although Chyna B. was too young to attend school atthe time the dispositional order was entered, the trial court wasnot obligated to anticipate that DCFS or juvenile court involvementmight discontinue prior to her becoming involved in a preschool,kindergarten, or schooling in a higher grade.

Last, the precaution taken by the court to requirerespondent father to complete a parenting class was not an abuse ofdiscretion in this case. The evidence is clear that respondentfather's job interfered at times with his responsibilities andduties as a father. Caring for the child was the primary issue. A parenting class could help respondent father in learning torelate to the child now and as she grows up. This directive fitswithin the best-interests-of-the-child parameters.

The judgment of the circuit court of Champaign County isaffirmed.

Affirmed.

STEIGMANN and APPLETON, JJ., concur.