may please the court counsel my name is sean fetish then i'm one of the public defenders here in jefferson county and i have been for a couple of years i'm here representing christy b she  is the respondent biological mother of the minor child d b this appeal pertains really to to court order the first of which was an adjudicatory entered on september third two thousand and ten finding  injurious environment based on three separate allegations which i'll address in turn in the second order was the dispositional order and are on january fourteenth two thousand and eleven that order allows for the removal of the minor child the b to her case for review but just to be clear i'm not asking that the matter be reminded to provide those findings of fact it's argument that there are no facts on the record that would substantiate gets you to cation in the first instance and we are asking for an outright reversal of that adjudication the state's first allegation of injurious environment was inadequate supervision of the state allege that christie be left the minor child in the home for extended period of time more than one occasion when whereabouts were no and i'm trying to piece through that and that is if there are different elements the first of which would be that she left the minor in the home that's not what the record says the record says the minor child came home six o'clock was met by her fifteen year old sister who was in the home and then went to her neighbor's cherry becker york who was a frequent routine caregiver for this child that's where the minor child remain till the police come to the home sometime between ten and eleven p siblings c h and a b c age was a male minor age fourteen a b was a female minor age fifteen a b is the one who's in the home babysitting at some point in the evening the children become concerned they don't know where their mother is and see age walks to the police department and i argue before the trial court argue here that there's nothing neglectful about a fourteen year old boy walk in you know several blocks in the city you didn't call and yes she testified that as soon as the children get out of school at four o'clock she testified that she tried to call see aging at that four o'clock time is when she first realized that she was going to be unable to communicate with the kids until she got back that wasn't in her testimony at the end you could to hear it was it was oh she testified that the cell her testimony was she didn't plan on being on all day and she specifically asked if they were going to be able to get her home by six you know by six o'clock and was indicated to her that she would be she said that the you know she didn't take a charger she didn't think she was going to be gone that so i you know i i first quarrel with the fact that they allege that she was left at home anyway to be because she wasn't there she was at the neighbor's house i also coral that this was an extended period of time as i've stated there's with respect to c h an a b they get out of school for a block the b s a little younger and she has a afterschool program and keep sergio six o'clock so it wouldn't have been anticipated or expected her mother would have been required in any event till six o'clock and she's home between ten and  well that that was my next argument is that it was the only occasion there was some testimony from d c s best caseworker that the minor children had reported that she had been gone elsewhere but there's no detail anywhere in the record about when this is alleged to occurred or for how long it was alleged to have occurred frankly i do say i do argue that that's the only time on the record february eighteenth two thousand and ten where there was a problem with miss boswell's caregiving if if  you determine that was a problem i'm not so sure that it's a problem for a mother to be gone for four hours when we're talking about teenage kids of this age i certainly fend for myself or more than one early evening when i was fourteen or fifteen until ten o'clock i mean that to me that wasn't something that shot my my sense of parental responsibility and i hope that it doesn't shock this for the state also allege that her whereabouts were unknown that's the only time the record reflects these kids didn't know where they were i don't know what else i could say about that this is a one incident that led these kids to being care and i thought it worth mentioning when officer matthew borden response to the home christie's there and the children or their beliefs i mean he leaves her there with the kids and says have a good night the c f s comes in the next day begins their investigation which ultimately resulted in shelter care being taken and the orders entered that i'm that i'm here with respect one provision with respect to this supervision i have to draw attention to is this seven o five i have c s oral five slash two dash three which provides that you can't leave kids under fourteen thousand provision for an extended period of time argued that before the trial or because by implication what it says is there's nothing wrong with leaving the fourteen and fifteen year old wound you know fourteen fifteen year olds stay at home and house it when their parents go on vacation you know i but with respect to deviate her siblings would have certainly been old enough to care for her in their in the mother's absence you know illinois unfortunately doesn't have an established age at which i sibling is allowed to caregiver to babysit some states do have that provision but i would certainly submit that fourteen and fifteen year olds especially under the facts of this before the trial where there's a wide body a lot worse best interest you know you have to show how substance abuse whether it's alcohol or illegal drugs you have to show how that affects the ability to parent before it becomes relevant on the best interest of terminations my position that the juvenile court five that and they say you have to prove not only the drug usage but show how it affected their ability to parent in this case we have no evidence that there were any problems with these children or the care given to these children until february eighteenth two thousand and ten there's no testimony they were going to school there's no testimony they were out running the streets picking up criminal charges and sure there is no evidence that her ability to parent was ever affected by her evidence  was that she admitted drug use is one week prior there was no testimony as to where the children if she used drugs a week prior and she was on vacation in the kids were out of town in a different place it's my position that's not neglect is a bad hearing certainly i would not look any of you in the eye and say it's ok to use illegal drugs but i would say it is not neglected to use illegal drugs unless you can show that that illegal drug usage has affected the ability to parent there is not one bit of evidence that the kids ever observed for high there's no evidence the kids ever observed her with with drugs in her possession if her substance abuse it's so taken over her life that she couldn't any longer function as a parent presumably that evidence would have been for the poor at the trial testimony that she had failed to drug test i think in that period of time but my response to that is if it wasn't presented at the adjudicatory evidence of the jupiter here i mean we can't very well use as evidence to sustain a jew could toward order what was done after that the chip children tested by two at the hearing they testify they never saw drugs the closeness we get to tell the money from the children of her christie was that on one occasion the children had seen scales in the residence in the kitchen when taco's there and b thought her mother had used drugs she speculated that maybe mom's use drugs oh i think she thought that that was a possibility i can't recall what her exact words were but my response to that is that that's pretty far from unequivocal testimony that something is true if if taco was a drug dealer where's the conviction for drug valerie where's the police officer who arrested him the people who purchased drugs from him there's nothing on the record about who i wrote shannon is other than what the state said basically through hearsay exceptions and shelter care the shelter care physician as well kristie admitted it was an illegal drug deal that's not what christie testified to christie testified that she said there was no personal knowledge of hers that talk of it ever sold illegal drugs but when confronted by officer brands he says he's a drug dealer what's he doing watching your kids she said well he wouldn't do that he the whole thing gets twisted they try to say she said well i know he's a drug dealer but he doesn't do at home or in my home she says no i don't know that but i certainly haven't seen any evidence of that i think the record is woeful with respect to the allegation that time shannon was a drug dealer that's not something we just clear that we don't have any indication she was ever higher around those children the judge says well i find it interferes with her ability to parent on feb eighteenth two thousand and ten regardless of whether or not she used cocaine that they are not that was  streets coming from the bench as he was explaining this ruling which i found remarkable it doesn't matter to him whether or not she used drugs on feb eighteenth two thousand and ten when it's their allegation that she was using drugs that it interfered with her ability to parent there was no evidence that somebody is still impaired seven days later from cocaine usage there was no evidence that it still affects your ability to make decisions in a rational manner seven days after usage if they had disclosed that evidence in discovery i certainly would have rebutted it i've had those cases of aggravated de wyze and when the judge says it doesn't matter whether or not she used on feb eighteenth two thousand and ten it's clear it didn't matter to him but it's my position before this court that it absolutely does matter they never showed she was impair  grandmother until she completed her substance abuse counseling and then go home but but both were certainly against the move to north carolina which you know the dispositional record is not nearly as linky as it would have been had i thought that was a possibility walk in and maybe that's a lesson learned on the young lawyer not to rely on what the g a o and concert are going to recommended a dispositional hearing but i've never seen a case where the decision disposed parted so starkly from from what was being recommended by those people who have been appointed by the court to speak as to that child's best interest so in some of the drug usage there's no evidence prior to this february eighteenth two thousand and ten issue we've already touched on tyrone chan and i i do think i need to mention she didn't testify it was a boyfriend and the children didn't that's how d c s best spun their records of their allegations out of the gates but that wasn't the evidence that was presented in this possible testified that tyrone shannon had a child her age her girl the son's age that she would buy clothes from him that she would he would bring his son over and they would all play video games together didn't testify that this was a boyfriend or a pair more in america back tonight that and i say that no evidence of illegal drug sales children of christie be get up and testify that's not what they said that was exactly how this hearing went down in the trial court it was obvious that the trial court judge did not believe the testimony of the children at the adjudicatory hearing and did not believe respondent christie christie says no i did it it's as if you put my client on the stand and you ask them did you do this and they say no and then you say your denial is so incredible that i'm not going to believe you and i'm going to find against you that is exactly what happened on this case and as a matter of law i hope that that is rejected obviously the potential for abuse you know by d c m s is a concern to me and all they have to do is get up and say my client said that's going to be difficult for me to ever have any good results in adjudicatory hearing when they don't have to corroborate it with other evidence would be one thing if there was evidence other than what the children said or what christie said there is no evidence of that there's no observations of her stuff there's no observations of her with illegal drugs there's no sort of by convictions of tyrone change his convictions and there's no reasonable explanation for how it could be neglect to leave teenagers home until ten o'clock or eleven o'clock in  b no i'm not aware of any prior criminal convictions if there had been i'm certain the state would have introduced those it at trial i of course i'm not going to swear there were because i don't have that personal knowledge but i would expect the state would have impeached her with really what i object to is the substance that a minor child on this record based on this adjudication gets sent where she doesn't want to go away from her siblings and away from her newborn niece i mean the kids i think the record basically reflects the kids crying about it i mean the judge says she's going to be upset when i tell her she's going to north carolina but she's gone but the interesting part about that is the minors testimony her father only visited with her five times during the pendency of this case each time when he was in jefferson county for court not once did he take a trip up that the children should have remained together and i don't know what else i could say about that i'm here to answer any more questions but i think that's probably it for my argument in injuries environment to drug use and injurious environment due to giving the children over to an improper taher caretaker now and injurious environment is not something that's subject to  precise definition it's something that is is something that can be determined by itself the facts of the case itself but it involves a breach of appearance duty to provide a safe and nurturing shelter for their child or child and in this case people did prove that contrary to what the defendant says  there there was testimony at trial by d d herself in which she said that she that she the her mother would leave partially and then come back and that it was not that the february eighteenth incident was not the first time that the mother had left her alone and and a b and c a no but she's not appealing it so in that finding stance and it's it is a finding of neglect as to a b and c age which she's not challenging what her you know were there was evidence that it that day at trial that indicated that the mother had left them alone on more than one occasion and left them unsupervised on more than one occasion and then of course there was the testimony of shop about everything that the children have explained and it i think it's  the court found that the court did not credit the mother's testimony about the events on february eighteenth and did not credit her testimony about her cell phone being dead and not being able to call till ten o'clock when the finally made it back to mount vernon and he did not credit in the of that story but what we do know is that the neighbor decker when when c h went to her and they were concerned because they couldn't find the mother and didn't know where she was her first response was to call the police to see if she'd been arrested now you know her the underlying rationale for her for that would be that dekker had some knowledge that the mother was involved in something that could result in her breast and that's why she went looking for her first there and then that's why c h walks up to the police department so the the children are left without proper supervision supervision and it's not it's the issue is not whether d b could find an adult to care for her that's not the issue the issue is the mother made no provision is she she testified that she did not make any provision for the children scare me she did say that it was because she expected to be back but she she admitted she didn't make any provision for the children's care so when they come home there's thing as s that in that it doesn't show the mother provided proper supervision and that's the ground and she did not provide proper supervision in that's where that's where the the courts finding that is not being challenged is that that a b is neglected because she there was a failure just supervis eighteenth when there was a failure supervise her yeah yeah there's also the fact that on on when when shot and gordon went to interview the children a couple of days later later there they found a runaway female minor in the home so there's also that circumstance as far as the failure to provide proper supervision is the fact that she leaves and there are and but that mayor was not identified  so there was i mean there was there was davies testimony and then also the testimony about the children statements about being left alone left unsupervised that were in the record and so d b s testimony that the mother would reasonable inference from the the child's testimony is that all three children were trying to protect the mother but d d couldn't quite bring herself to lie so she would say she would partially leave partially come back and i think that's the way the were took at the court thought the children were trying to protect the mother and toning down their testimony from the statements that they had made to shawn and i think that's what it that's what it means and that's why the court said in light of these testimony and the down the soft peddling of their time their test their statements that he believed their statements that were made to shock which indicated that they had been le t unsupervised on more than one occasion and over night then there's also the circumstance of the mother behavior when she returned while the officers who were there on february eighteenth she was uncooperative she was would not answer the questions she was very defensive  and that night she didn't mention any problems about having card company she made no explanation for absence at all so you know that that that all this it goes to leaving the children at and supervised without proper suit is d p testified as far as to as to the drug use there were all sorts of statements that were made to shar detailing  details of the mother's drug use and and tyrone shannon's drug use and their how they would use cocaine together and how she would get seeds out and take it and how they would go should the mother when she was going to use cocaine would go upstairs say that that she didn't think her mother is using drugs she said she'd never seen her mother used drugs but she definitely thought she was doing something was going on with drugs and that and she would talk about how her friends would come over so there is some cooperation about the mother's drug use and then there's also the fact that the mother admitted and this is the statement that the court credited that she admitted that she had used cocaine a week before the team incident so there is some cooperation and there's some admission as to drug use how did this affect her ability to parent well it affected her judgment in the end we're not talking about just being under the influence at the time causing you know in an inability to parent but it had a long term effect on her judgment and that she permitted i mean her drug use caused her children to have to leave the home d said that when her mother used drugs she would just leave and go next door to the neighbors she just couldn't you know be around it so she had this this this had to her use of drugs had the effect of causing an in that she exposed her children to big use of illegal drugs and how to and how to use them so that those things are definitely true whether or not she was under the influence all the time felt comfortable leaving her children with tyrone shannon who you know the children had made statements was dealing drugs and using drugs in their home and who she knew or she thought if if he did sell drugs this is the mother statement if he did sell drugs he didn't do it in her house so she i mean and then there's the statements to the effect that the mother and tyrone yeah that was a statement of d p to shock but i mean the mother knew he was an inappropriate caretaker but she testified that she was comfortable leaving him leaving the children with him while she walked three blocks to farm fresh and back but d b s testimony was a little more revealing she said that that tyrone was her buddy and th he was there every day and that sometimes he did babysit them but now very often and just for a short time none the less you know duration fifteen minutes a lot can go on  whether or not it was a short time or a long time there was evidence that she left the children with tyrone shannon and that he was an inappropriate caretaker  that that part has to be vacated because the court had no authority to issue a dispositional order over a child that was not awarded to the court however the court had be who had been the court had to educate it neglected the court had a mother which at the time of the dispositional hearing there was evidence that she had complied with her drug testing and there was evidence that she had had dirty she had not had failed your analysis to us and that you know she had she made some progress but she hadn't made she hasn't dealt with her drug dealing issues her drug use issues now the court could not return a child to a mother who was the source of neglect and injurious environment but the court had a father that was had had to comply with all of the interstate checks and had an income and a stable home and a stable job and wanted to parent his child who testified that in the year before may two thousand and nine he had had d b and should live with him because of the mother ongoing pattern of drug use now short when because the court did not make d p a ward of the court the parents rights worse appear but at this point in time he could the court could not of the courts in their north carolina to settle issues of visitation and custody and that that is what the court did but the court had no authority to find the mother unfit as g d p and had no authority to find the father fit just a couple things with respect to the d b having been left for these mom coming back leaving partially i think she'll aberrated her testimony that there was a statement made by d b about her doing mom stuff i take doing mom stuff to m grocery shopping things like that there was no evidence that those periods of time during which d p was left for extended periods of time or that the minor was in any danger because of that with respect to the issue of not of killing the other children it's kind of like the drug tests that occur after adjudication if she had had other adjudicated neglect cases at the time of the adjudicatory hearing then those very well may have been admissible in relevant is evidence of her parenting obviously the fact that north carolina and directed the state to prepare the water i didn't look at that order until this appeal i really don't have any reason or explanation for the procedural errors other than you know  on she's got a ex husband who makes one hundred forty thousand dollars a year he gets a public defender in jefferson county the only way to represent him on a what i call ex of the day expedited child custody case is turned out being you know he gets a public defender to represent him he gets this custody order and now she's left to fend for herself and go hire a private attorney to go get visitation in north carolina where the record is that she can't even afford gasoline to get back and forth from substance abuse counseling she got stepped on you know about the court not believing mom obviously you know i'm maybe becoming a little cynical in my old age but sometimes i feel like those are just buzzwords judges drop to protect the ruling on appeal and that's good and that's sufficient if there's other evidence there's not other evidence in this case that the credibility determination substantiates all we have is did christie and the kid say this or didn't that because there's no direct evidence of drug use of drug convictions or drugs being  home it's just it's just a credibility dispute and like i said that i could see that dip in things in the state's favor if there had been other evidence but they're just simply right but i'm back to the to the juvenile court act provision that hearsay statements by the children to the investigator are not enough to substantiate an adjudication unless corroborated there was no corroboration that the kids had ever seen anything crunched up and grown you know really being a he said she said between the c f s and this family i think the decision to break the family up was was clearly an air with a runaway there was no evidence christie had any knowledge of that you know and the whole notion that the kids were trying to protect their mom if that's true that's because they had had problems in their mom's care they want to stay with her if that's true i'm not saying it is i definitely know that you can look at this record of presume that just like the judge did you know you may well think she was using drugs but the kids were protecting her there's just no evidence of problems prior to february eighteenth two thousand and ten if the kids were protecting her it's because they want to stay with her because they have had problems because she's a good mom d b describe her as her best friend and testif