## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re J.Y

. , 2011 IL App (3d) 100727

Appellate Court Caption In re J .Y., a Minor (The People of the State of I ll i n o i s , P eti tionerAppellee , v. Ashlee S., Respondent-A ppellant).

District & N o. Third District Docke t No. 3-10-0727

Filed November 30, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In p r o c e eding s arising from the broken leg suffe red by responde nt’s child, the trial court abused its discretion in admitting a letter from a phy sician who examined the child st at i n g the fra cture was “hig hly suspicious for abuse,” since the trial court failed t o satisfy the requirements of section 2-18(4) (a) of the J uvenile Court Act, the State call ed n o wi tnesses to testify how the letter was prepa red, there was no evidenc e the letter was prepa red i n t h e n o rm al course of business and the letter was not a standard business rec ord or medical rec ord; howeve r, the err o r was harmless wher e the letter did not play a substantial part in the trial court’s decision, the deter

mination o f n e g le ct was not ag ainst the manifest weight of the evidenc e, and the trial court did not err in finding responde nt unfit.

Dec ision Under Review Appea l from the Circuit Court of Peoria County
, No. 10-JA-170; the Hon. Richard D . McCoy , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l L ouis P. Mi lot (argued), of Peoria, for

appellant.

J err y Br ady
, State’s Attorney
, of Peoria (Ter ry A. M er tel and J udith Z

. Kelly (ar gued), both of State’s Attorney s Appellate Prosecutor’ s Offic e, of counse l), for the People.

Panel J USTI CE O’B RI EN deliver ed the judgment of the c ourt, with opinion.
J ustice McDa de conc urre d in the judgme nt and opinion.
J ustice Holdridg e spec ially concur red, w ith opinion.

OP INION

¶ 1 The State filed a juvenile neglec t petition ag ainst responde nt Ashlee S. concerningher
son, J .Y. A neg lect finding was enter ed, and the trial court found Ashlee unfit and appointed the Depa rtment of Children and Family Service s (DCFS) guardia n of J .Y. Ashlee appea led. We affir m.

¶ 2 FACTS ¶ 3 The State filed a petition alleg ing neg lect of J .Y., a minor. The petition stated that J .Y.’s environment was injurious t o his welfa re beca use: (1) between May 31, 2010, and J une 2, 2010, the minor’s leg was fra cture d and the injury could n o t have occur red absent abuse and/or neg lect by responde nt Ashlee S., the minor’s mother, and/or the fathe r; (2) the minor’s fathe r was previously found unfit in two separ ate case s in another county without a subsequent finding of fitness; (3) the minor’ s father had a criminal history ; ( 4) the minor’s fathe r has a substance abuse problem; and (5) Ashlee and the minor’s fathe r wer e previously indicated for risk of harm by DCFS on two separ ate occa sions. Ashlee and the minor’s fathe r stipulated to evidenc e supporting alleg at i o n s (2 ), (3), and (5). A shelter car e hear ing took place and the trial court enter ed an order placing the minor in te mporary custody of DCFS. ¶ 4 DCFS consente d to an examination of the minor and authorizing the Pediatric Resource Center (PRC) to evalua te the minor for child abuse or neg lect. DCFS provi d ed i ts investigative repor

ts an d t h e minor’s medical rec ords to PRC

. The information was then forwa rded to Cha

nning Petrak, a doctor on staff at PRC

. The information disclosed that on J une 1, 2010, the m inor was taken to the hos pital, where he was diag nosed wit h a fractur e of the rig ht tibia. The information also disclosed that Ashlee had stated that J .Y. was injured

on May 31, 2010, when the family dog jumped on him. Petrak’s notes ref lect that on J une 1, 2010, she examined J .Y. persona lly and revie wed his vital signs, lab results, and radiolog y repor t. After revie wing her own notes and the information provided by DCFS, Petrak draf ted

-2-a letter dated J uly 14, 2010, that set forth he r impressions on J .Y.’s injury

. She opined that it “is not plausible t h at [ t h e m i n or’s] leg was fra cture d ear ly on May 31, 2010, y et [t he minor] showed no signs of pain until the night of May 31, 2010 or morning of J une 1, 2010.” Petrak stated that the minor’s injury as a fra cture is not ty pically seen with acc idental injury but is associate d with “non-a ccide ntal traum a” and is “hig hly suspicious for abuse.” The letter explains that the s h ea ri n g force associate d with simil ar fra cture s can occur due to holding and shaking an infant by the chest with the limbs whiplashing back and forth. Petrak acknow ledg ed t h at J .Y.’s C T head scan and MRI wer e normal. The letter further provides that the history Ashlee g ave was not consistent with the minor’s injury

. In Petrak’s opinion, J .Y.’s fr actur e is “most consistent with inflicted trauma.” ¶ 5 At an adjudicatory h ea ri n g o n Au gu s t 9, 2010, Peoria detec tive Marily n Robinson testified that on J une 2, 2010, she was called to St. Fr ancis Hospital (OSF)
, wher e she spoke with DCFS repr esenta

tives. She observe d J .Y. and did not s ee any bruising or swelling on hi s l eg. S h e i nterview ed J .Y.’s pare nts. The fathe r told Robinson that on the afte rnoon of May 31, 2010, he and Ashlee wer e taking J .Y to his g randmother ’s house. Ashlee was in the front passeng er seat of the fathe r’s truck and J .Y.’s fathe r put him in the backse at. He hear d J .Y. cry ing and noticed that the dog had jumped into the car an d o n J .Y. Ashlee told Robinson that J .Y. crie d a littl e but she did not see any marks or blood on him. After returning from the g randmother ’s house around 9 p.m., J .Y. was fussy

. Be cause he was pulling his leg s up to his stomach, Ashlee thought J .Y. had a st omach ache. S h e gave him
pepper mint water and he slept throug h the night. When he woke up, J .Y. ag ain beg an pulling h i s l egs up to this stomach. He started cry ing when his fathe r t ouched his leg so they took J

. Y. t o the hospital. Robinson went to J .Y.’s house and observe d a larg e dog
, weighing betwee n 100 to 115 pounds. ¶ 6 The State moved for the admission into evidenc e of the cer tified rec ords of OSF and the PRC

. Ashlee objected to the admis sion of the PRC recor ds, particularly the J uly 14, 2010, letter from Petrak, which she argued was a document prepa red in a nticipation of litigation. The trial court sustained Ashlee’ s o b j ec t i o n to the J uly 14 letter. The trial court there afte r enter ed an order vaca

ting its orig inal ruling on the letter and admitted it into evidenc e. The trial court state d:
“It h as *** come to the court’s attention that Peoria County J A court stare decisis exis ts allowing the admission of the subject PRC ’s writing
, for it has been an established
prac tice in this court (at least for the immediately prec eding three judge s presiding in the J A court) that PRC written repor t s ar e ad m i ssible under section 2-18. The rationale is that the re port is made shortly afte r t he occurre nce in the ordinary course of the PRC’s business of providing diagn o sis, as contemplated by section 2-18. Somewhat superf luously
, it is believed that one or more unpublished, Rule 23 Third District ruling s support that established pra ctice, but none has ac tually been pr oduced to date. The evidentiar

y ruling is acc ording ly vacated, and conver sely
, the writing is admitted into evidenc e. There is no need for the prosec ution to produce the author or es t ab l i s h additional foundation.” ¶ 7 The adjudicator y hear ing resumed and Ashlee testified. She stated that she saw her 100-

-3-pound dog run from the front of the house and jump in the open door of the truc k and onto J .Y.’s car seat. Ashlee believed that the dog thought it was g oing for a car ride, which it had done befor e. Both of the dog ’s front paws landed on J .Y.’s right leg

. She took him out of his

car seat, looked him over and did not see any marks or bruises. Ashlee “shushed” the minor until he calmed down about five minutes afte r the incident. She chec ked J .Y. throug hout the day but never saw any bruising. After they returne d home, J .Y. slept for 10 hours but woke
up scre aming

. She thought he had a stomach ache and took him to O SF. An x -ra y reve aled that his rig ht tibia was fra cture d. The location of the fra cture matched wher e th e d o g had landed on J.Y. ¶ 8 Followingarguments, the trial cour t stated:
“We have a 2-month-old with a broken leg

. We have pare nts who have a long history of DCFS[ -]indicated findi ng s fo r ri s k of harm to children, and we have a fathe r who’s
g ot a criminal conviction for endang ering the life or health of a minor. So just based on those cold hard fac ts alone, nothing else at all, those indisputable fa ct s ar e m o re than
enough to sustain a finding by a preponde ranc e of the evidenc e that this broken leg was the re sult of abuse or ne g lect. The Court does not–and I want to make the rec ord clea r–the Court does not at all buy the theory that the dog jumped on the minor and broke the minor’s leg

. So despite those indisputable fac ts that I just mentioned, if you add the explanation gi v en b y the mom, which is from wher e I sit incre dible in larg e part, her testimony actua lly strengthens the theory of the State; add that the fathe r didn’t testify at all, and it adds a lit t l e m ore

s t rength. Finally
, if you add this Pediatric Resource Center letter, whether it’s superf luous or not, the n the case is pr oven by the most diff icult bur den of proof, which we don’ t even ne ed in this context .” ¶ 9 The trial court found that J .Y.’s injury was found by some sort of abuse or neg lect, “thus producing an injurious environment.” After a dispositi onal hear ing wher e the parties did not offe r additional evidenc e, the trial court found it was in J .Y.’s best interest to be made a war d of the State and that both pare nts wer e unfit. It awa rded guardia

nship of the minor to DCFS. Ashlee a ppeale d.

¶ 10 ANALYSI S ¶ 11 There are three issues on appea l: whether t h e t ri al co urt err ed in admitting business

rec ords, in findingneg lect, and in f inding the mother

unfit. ¶ 12 We beg in with a consideration of whether the t ri al court improperly admitted Petrak’s J uly 14 letter as a business rec ord. Ashlee arg ues that Petrak’s J uly 14 letter was improperly admitted as a bus i n es s re co rd under section 2-18(4) (a) of the J uvenile Court Act of 1987 (Juvenile Act) (705 I L CS 405 / 2-18(4) (a) (West 2010)). She complains that the letter was prepa red in anticipation of litigation, that it does not qualify as a medical or business rec ord, and that it is inadmissi ble. ¶ 13 The J uvenile Act specific ally provides fo r t h e ad m i s s i o n o f b u s i ness rec ords into evidenc e when statutory foundational require ments are met. 705 I L CS 405/2-18(4)( a) (West 2010); In re A.B.
, 308 I l l

. Ap p

. 3 d 227, 234-35 (1999). To establish a foundation, the

-4-proponent must show the writing was (1) made as a memorandum or rec ord of the condition

or event; (2) made in the ordinary course of business; a nd (3) made at the time of the event

or within a rea sonable time there afte r. 705 I L CS 405/2-18(4)( a) (West 2010); A.B.
, 308 I ll. App. 3d at 235. The author of the writing does not need to testify ; anyone familiar with the business and its proc edure s may testify about how the writing was prepa red. In re Y

asmine P.
, 328 I ll. App. 3d 1005, 1010 (2002). Records prepa red in anticipation of litigation are not made in the regular course of business and are not admissible as business rec ords. A.B.
, 308 I ll. App. 3d at 236. Diagnoses and opinions in medical rec ords are admis s i b l e under the business rec ords exception. Troyan v. Rey es , 367 I ll. App. 3d 729, 734 (2006); A.B.
, 308 I ll. App. 3d at 236 (client service plans made in th e regular course of ag ency business wer e admissible); In re Kenneth J.
, 352 I ll. App. 3d 967, 983-84 (2004) (same)

. We revie w the admission of evidenc e pursuant to section 2-18(4) (a) for an abuse of discretion. In re Precious W

. , 333 I ll. App. 3d 893, 901 (2002). ¶ 14 The State did not satisfy the require ments of section 2-18(4) (a)

. The State failed to call
any witnesses, including Petrak, to testify how her letter was prepa red. It simply moved for its adm i ssion. Ashlee objected and the State responde d that the function of the PRC is to examine children and make finding s, and that the letter was prepa red in the ordinary course of the PRC’s business. The only foundational e vidence that the State prese nted came from i t s ar gu m en t

. It offe red no evidenc e demonstrating that Petrak’s letter was made in the
regular course of PRC ’s business. The letter was not a standard business rec ord or medical

rec ord admissible under section 2-18(a)(4)

. The trial court abused its discretion in admitting Petrak’s le tter. ¶ 15 I n re v ersing its initial decision and admitting the letter, the tri al co u rt n o t ed t h e establi s h ed prac tice of the Peoria County juvenile courts to allow the admission of PRC writing s under section 2-18(4) (a) of the J uvenile Act. The trial court conclude d that stare decisis mandated the letter’s admission. The doctrine of stare decisis “expresses the policy of the courts to s t an d b y p recede nts and not to disturb settled points.” (I nterna l quotation mark omitted). People v. Colon
, 225 I ll. 2d 125, 145 (2007). Howeve r, the deter mination of whether a writing is admissible under section 2-18(4) (a) of the J uvenile Ac t must be
g overne d by the fac ts of eac h individual case

. Stare decisis is not an inflexi ble command, and if a court has made a mistake, it will corr ect it in spite of stare decisis

. Colin , 225 I ll. 2d at 146. That PRC writing s wer e admitted in prior juvenile proce eding s does not excuse a party from satisfying section 2-18(4) (a) require ments. We conclude that the trial court’s relianc e

on stare decisis wa s m i s guided. We further find that, although the letter was admitted in

err or, such err or was harmless. An evidentiar y ruling in err or by the trial co u rt re q uires

reve rsal only wher e the err or play ed a substantial part in the verdic t. People v. Edwards
, 144 I ll. 2d 108, 170 (1991). As discussed in detail below, there was ample information supporting the trial cour

t’s finding s of neg lect and unf itness. ¶ 16 The next issue for our deter mination is whether the trial court err ed in enter ing a finding of neg lect. Ashlee argues that the trial court failed to adequately consider the evidenc e befor e it and that the evidence does not demonstrate that either she or J.Y.’s father f ailed to ca

rry out their pare ntal duties. Ashlee complains that the trial cour t ignor ed her

explanation that the doginjured J.Y. and the neg ative re sults of the skeletal surve y , MRI and CT head sc an

-5-in making a finding of neg lect. She also objects to Petr ak’s opinion a s insufficiently based.

¶ 17 A neg lected minor includes one whose environment is injurious to his or her welfa re. In

re Art h u r H.
, 212 I ll. 2d 441, 462 (2004). An injurious environment includes brea ch of a pare nt’s duty to ensure a “ ‘ safe and nurturingshelter’ ” for his or her children. In re N.B.
, 191 I ll. 2d 338, 346 (2000) (quoting In re M.K.
, 271 I ll. App. 3d 820, 826 (1995))

. A neg lect alleg ation must be proven by a pre pondera

nce of the evidenc e. N.B. , 191 I ll. 2d at 343. O n appea l, a trial judge ’s ruling of neg lect will not be reve rsed unless it is ag ainst the manifest weight of the evidenc e, that is, only if the opposite conclusion is clea rly evident. In re Arthur H. , 212 I ll. 2d 441 (2004). ¶ 18 The rec ord establishes that the State proved the neg lect alleg ation by a preponde ranc e of the evidenc e. The emer g ency room and a consulting doctor both indicated that the f rac ture of J .Y.’s leg “had a relativ el y h i gh s pecif icity for non-ac cidental trauma.” A third doctor

co n cl u ded the fra cture resulted from the i ncident with the dog or from child abuse. Petr ak conclude d that the fra cture was the result of in fl i ct ed t rauma. The trial court specific ally noted that it did not believe J .Y.’s injury was cause d by the dog jumping on him but believed it resulted from some sort of abuse or negle ct. The trial court also noted t hat both pare nts’ “long history of DCFS[-] indicated finding s for risk of harm to children” and the fathe r’s criminal history
, including a conviction of endang ering the life of a child, wer e sufficie nt to sustain a neg lect finding

. We find that its deter mination of neg lect wa s not ag ainst the manifest we ight of

the evidenc e. ¶ 19 The thi rd i ssue for our review is wh et h er the t rial court err ed in finding J .Y.’s mother, Ashlee, unfit. Ashlee contends that the evidenc e failed to establish that she is an unfit pare nt. ¶ 20 A trial court may deter mine custody an d p l ac ement of a child when it finds that the
pare nt: “[is] unfit or unable *** to car e for, protec t, train or discipline the minor or are unwilling to do so, and that the health, safe ty and best intere st of the minor will be jeopar dized if the minor rema ins in the custody of his or her pare nts.” 705 I L CS 405/2-27 (West 2010). ¶ 21 In ruling on unfitness, a trial co u rt co n siders “ ‘the pare nt’s past conduct in the thenexis ting circ umstances .’ ” In re Latif ah P.
, 315 I ll. App. 3d 1122, 1128 (2000) (quoting In

re Adoption of Syck

, 138 I ll. 2d 255, 276 (1990))

. On revie w, the trial court’s deter mination will not be disturbed unless the finding s of fac t are ag ainst the manifest weight of t h e evidenc e. In re J.P.
, 331 I ll. App. 3d 220 (2002). A finding is ag ainst the manifest weight of the evidenc e only where t h e opposite conclusion is clea rly evident or the deter

mination is

unrea sonable, arbitra

ry or not based on evidenc e prese nted. In r e D.F.
, 201 I ll. 2d 476 (2002). ¶ 22 The disp o s i t i onal order findi ng Ashlee unfit provides that the t rial court’s finding s are based on the alleg ations in the petition. The alleg ations include that J .Y.’s injury could not have occur

red without abuse or neg lect by Ashlee and/or J .Y.’s father; the fathe r has been found unfit previously without a finding of fitness; the fathe r has a criminal history including endang ering the l ife of a child; the father has a substance a

buse problem; and both pa rents had been previously indicated by DCFS for risk of harm and inadequate supervision. The
pare nts stipulated to the alleg ations. The past conduct of Ashlee and J .Y.’s fathe r colors the

-6-incident at issue and supports the conclusion that Ashlee is unfit to car e for and protec t J .Y.

The trial court specifie d that it did not believe J .Y. was injured by the dog as Ashlee testified, leaving abuse or neg lect as t h e s o u rc e of J .Y.’s injury

. We find that the evidenc e demonstrates Ashlee is unfit. The trial court’s finding s wer e not ag ainst the manifest weight of the e vidence

. ¶ 23 For

the fore g oing r easons, the c ircuit court of Peoria County

is affirme d.

¶ 24 Affir

med.

¶ 25 J USTI CE HOL DRI DGE, spec ially concur ring : ¶ 26 I agree with the m ajority ’s j udg ment and analy sis. I write separ at el y t o point out some addition al re cord evidenc e supporting the trial court’s finding s of neg lect and unfitness whi ch further confirms that the trial court’s err oneous admission of Dr. Petrak’s J uly 14, 2010, letter was harmless. Dr. Petrak’s notes of her initial examination of J .Y. on J u n e 1, 2010–the admissibili ty of which is not contested–indicated that the ty pe of fra cture that J .Y. suffe red was high specific ity for nonacc idental trauma, that the acc ident history provided by J .Y.’s pare n t s was not consistent with J .Y.’s injury
, and that J .Y’s injury was highly suspicious for nonacc idental trauma. Moreove r, a DCFS case worke r testified reg arding the appellant’ s history of depre ssio n an d o t h er mental health issues. When this evidenc e is considere d toge ther wi t h t h e stipulations and other evidenc e discussed in the majority opinion, it is clea

r that there was ample support in the rec ord for the trial court’s finding s of
neg lect and unf

itness, even without Dr. Petra k’s J uly 14, 2010, letter.

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