Illinois Official Reports 

Appellate Court

In re Zariyah A., 2017 IL App (1st) 170971

Appellate Court 

Caption

In re ZARIYAH A., DeANGELO L., JAMES L., MIKYRA P., 

KAMAHRIE J., COURTNEY J., and MARTE J., Minors (The People 

of the State of Illinois, v. Ebony F., Respondent-Appellant).—In re 

ZARIYAH A., a Minor (The People of the State of Illinois, v. Merrill 

A., Respondent-Appellant).—In re AMARI A., a Minor (The People 

of the State of Illinois, v. Merrill A., Respondent-Appellant).

District & No. First District, First Division

Docket Nos. 1-17-0971, 1-17-0974, 1-17-1059 cons.

Filed December 29, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, Nos. 14-JA-1388 

through 14-JA-1394, 14-JA-1410; the Hon. Andrea M. Buford, Judge, 

presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

Amy P. Campanelli, Public Defender, of Chicago (Eileen T. Pahl, of 

counsel), for appellant Ebony F.

E. Madeline O’Neill, of Chicago, for other appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, 

Mary P. Needham, and Nancy Kisicki, Assistant State’s Attorneys, of 

counsel), for the People.
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Robert F. Harris, Public Guardian, of Chicago (Charles P. Golbert, 

Kass A. Plain, and Mary Brigid Hayes, of counsel), guardian ad litem.

Panel JUSTICE MIKVA delivered the judgment of the court, with opinion.

Presiding Justice Pierce and Justice Harris concurred in the judgment 

and opinion.

 OPINION 

¶ 1 At issue here are the rules of evidence as they apply to adjudicatory hearings under the 

Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2016)). These consolidated 

appeals involve eight minors ranging in age from 3 to 16 years old. Following an 

adjudicatory hearing, the trial court entered orders finding each of the minors was neglected, 

based on a lack of care and an injurious environment. And following dispositional hearings, 

the court found that Ebony F., the biological mother of seven of the eight minors, and Merrill 

A., the biological father of two of the minors, were unable and/or unwilling to care for the 

children. Ebony’s seven biological children, including her daughter with Merrill, were 

adjudged wards of the court and placed under DCFS guardianship. The eighth 

minor—Merrill’s other child—was placed in the care and custody of his biological mother. 

¶ 2 On appeal, Ebony and Merrill challenge only the trial court’s adjudication orders, arguing 

that the court’s findings of neglect were against the manifest weight of the evidence and were 

influenced by the court’s improper consideration of certain evidence including Ebony’s 

admission that she used marijuana, hearsay evidence regarding the results of Ebony’s mental 

health and substance abuse evaluations, and evidence of Ebony’s unwillingness to participate 

in intact family services. 

¶ 3 Merrill also argues that evidence of the family’s involvement with DCFS and intact 

family services, prior to the time that Zariyah was born and Merrill and Amari came to live 

with Ebony and her other children, is irrelevant and should not have been considered in 

connection with the trial court’s findings that Zariyah and Amari were neglected. 

¶ 4 For the reasons that follow, we reverse the trial court’s findings of neglect and remand for 

further proceedings consistent with this opinion. 

¶ 5 I. BACKGROUND 

¶ 6 Ebony F. is the biological mother of seven of the eight minors (Courtney J., Marte J., 

Kamahrie J., Mikyra P., James L., DeAngelo L., and Zariyah A.) in these consolidated 

appeals. Merrill A. is the biological father, with Ebony, of the minor Zariyah A. Merrill is 

also the biological father of the minor Amari A., with the biological mother Zivial J. 

¶ 7 When the family first came to the attention of the Illinois Department of Children and 

Family Services (DCFS) in 2013, Ebony’s six older children were living with her. Zariyah 

was born in early 2014, and sometime that same year, Merrill and Amari began living with 

Ebony and the other children. 
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¶ 8 In November 2014, all eight children were taken into protective custody, and the State 

filed petitions to adjudicate them wards of the court, alleging that the children were 

neglected, based on a lack of care and an injurious environment, and abused, based on a 

substantial risk of physical injury. The facts alleged in support of those petitions include the 

following: 

“On August 12, 2014 mother was involved in a domestic dispute with a family 

member who resides in the same apartment building. There is an ongoing issue of 

domestic violence between mother and this family member. On November 15, 2014 

the mother was arrested due to violating an order of protection. Mother is currently 

incarcerated. On November 18, 2014 the family apartment was observed to be 

extremely cold. The apartment had no heat and no gas *** [W]ater pipes had burst in 

the building and had not been repaired. [Zariyah’s] putative father stated that he had 

nowhere else to reside with this minor and minor’s siblings. Minors are often left 

without adequate adult supervision. Mother and [Zariyah’s] putative father admit to 

smoking marijuana. On November 18, 2014 minor and minor’s siblings were 

observed to be dirty and unkempt.”

¶ 9 In a supporting affidavit, DCFS investigator Priscilla Cash listed the following specific 

reasons why the children needed to be taken into protective custody: “Mom incarcerated; 

household where children living has no heat in the home. Father unable to make plan for his 

children. Children being supervise [sic] by the 13 year old.”

¶ 10 The trial court conducted an adjudicatory hearing for all eight children on May 9, 2016. 

At the hearing, counsel for Ebony presented a motion in limine, joined in by Merrill, to bar 

all evidence of her involvement with intact family services on the grounds that, under section 

2-10 of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-10 (West 

2016)), evidence of a parent’s acceptance of services cannot be treated as an admission of 

neglect or abuse. Ebony also argued that evidence of her participation, or lack of 

participation, in intact family services was irrelevant at the adjudicatory stage. The trial court 

denied the motion. 

¶ 11 The following testimony and other evidence was presented at the adjudicatory hearing. 

¶ 12 A. Initial DCFS Involvement—Summer and Fall of 2013 

¶ 13 DCFS investigator Diane Hankle testified that she was assigned to the case in June 2013, 

in response to two hotline reports for inadequate supervision. Ms. Hankle visited Ebony’s 

home on June 28, 2013, where Ebony was living with her six children—Ebony’s youngest 

child, Zariyah, had not yet been born. Ms. Hankle described the home as “dirty.” According 

to her, there were dog feces and urine in one of the bedrooms, the kitchen and bathroom were 

dirty, “[t]here were clothes all over the place,” the children were sharing a single torn 

mattress on the floor, and a door had been placed over a broken window. Ms. Hankle also 

testified that “all of the children were dirty,” wearing dirty clothes and looking as if they 

needed a bath. DeAngelo, the youngest, was wearing dirty underwear and “had some sort of 

bumps over him.” When interviewed, the children indicated that the family had no hot water 

or working stove and that their mother had to take food next door to cook. But they stated 

that they had plenty to eat, bathed regularly, and could remember what they had for dinner. 

According to Ms. Hankle, four-year-old James and three-year-old DeAngelo told her that 
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Ebony sometimes left the children home alone, but this was contradicted by seven-year-old 

Kamahrie. 

¶ 14 Ms. Hankle spoke to Ebony, who, according to Ms. Hankle, “said that she was stressed, 

and she had some depression,” that this was affecting her “[i]n terms of not being able to get 

that house cleaned up,” but that she was not taking medication or receiving mental health 

treatment at that time. Ms. Hankle said that Ebony expressed willingness to complete the 

services that Ms. Hankle mentioned to her, which included a “[s]ubstance abuse assessment, 

a mental health assessment, counseling and parenting classes.” Ms. Hankle explained that the 

house was not safe for the children, and Ebony agreed to participate in safety planning, 

which called for the children to reside with a neighbor while Ebony cleaned up the home. 

¶ 15 Ms. Hankle testified that she returned to the home a week later, on July 5, 2013, and, 

based on her observations, determined a safety plan was no longer needed. According to her: 

“A. It looked like a completely different house. It was clean. There was pictures 

on the wall. It smelled good. There was some furniture there. The window had been 

replaced. The broken windows had been replaced. 

 Q. And had the feces and urine been removed? 

A. Absolutely.”

At that time Ms. Hankle had also ordered beds for the children with “Norman funds”—funds 

provided to families with children who are at risk of being placed in DCFS care due to a lack 

of food, shelter, clothing, or other essential items (see Norman Services: Information on 

Housing Advocacy, Cash Assistance and Other Services, Ill. Dep’t Children & Family Servs., 

https://www.illinois.gov/dcfs/lovinghomes/families/Documents/NormanServices.pdf (last 

visited Dec. 20, 2017))—which were due to arrive soon. 

¶ 16 Based on the condition of the home during her initial visit, Ms. Hankle indicated 

allegations of environmental neglect and risk of harm. However, she found no credible 

evidence of inadequate supervision. When Ebony had to leave the house, she left the children 

in the care of her neighbor. Ms. Hankle’s last involvement with Ebony was a transitional visit 

with intact family services worker Latonya Hale. 

¶ 17 B. Intact Family Services—Late 2013 and Early 2014 

¶ 18 Ms. Hale was assigned to work with Ebony and her family in September 2013. Ms. Hale 

testified that when she first met Ebony on September 16, 2013, she told Ebony that the DCFS 

investigator had recommended “certain services for her, including a mental health 

assessment, parenting [classes], and [a] substance abuse screen[ing].” According to Ms. Hale, 

Ebony agreed to the mental health assessment, which she recalled discussing with Ms. 

Hankle, but said she was not aware of the other services and “wasn’t going to do those 

services” because “she didn’t feel it was needed.” However, on September 25, 2013, Ms. 

Hale reiterated her recommendations to Ebony, and Ebony “agreed to comply with the 

services.” Although Ms. Hale observed at that time that the cooking gas was turned off in the 

home, she also noted that Ebony had a two-burner electric stovetop that she used to cook and 

to heat hot water for bathing. 

¶ 19 Ms. Hale next met with Ebony on October 3, 2013, to review service referrals and offer 

Ebony assistance with transportation. Ebony told Ms. Hale that her biological mother, 

Kimberly Holiday, whom she referred to as “Pony Girl,” had a vendetta against her and “was 
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always causing problems for her and the children.” The reports that Ms. Hale prepared 

indicated that it was Ebony’s mother who called the hotline to report Ebony to DCFS. Ms. 

Hale walked around the home during this visit and testified that she “th[ought] the utilities 

were working on that date.” 

¶ 20 Ms. Hale testified that she initially made weekly visits to the home, both announced and 

unannounced. She stated that sometimes, even when a visit had been arranged in advance, no 

one would answer the door. By November 6, 2013, although Ebony told Ms. Hale that she 

had called one of the referrals and not received a call back, Ms. Hale said “no services 

engagement was taking place.” Ms. Hale gave Ebony new referrals and went over them again 

with her. At this time, Ebony disclosed to Ms. Hale that she was pregnant and that the baby’s 

father “was no longer in the picture.” She also told Ms. Hale that the family’s refrigerator 

was not working, and Ms. Hale agreed to try to obtain Norman funds to replace it. 

¶ 21 On November 26, 2013, Ms. Hale drove Ebony to Ingalls Behavioral Health Center for a 

mental health assessment. When the State asked Ms. Hale what the outcome of that visit was, 

Ebony’s counsel objected, and the following exchange took place: 

“[Assistant State’s Attorney]: And what was the outcome of that assessment?

 [Ms. Hale]: The clinician confirmed—

 MS. GIPSON [(COUNSEL FOR EBONY)]: Objection, hearsay. 

 THE COURT: Overruled. Go [a]head. 

MS. LOZA [(Assistant State’s Attorney)]: You may answer.

A. The clinician spoke with both of us, and she confirmed that mom’s diagnosis 

was bipolar disorder NOS. 

 MS. GIPSON: Continuing objection to the hearsay. Witness is testifying as to an 

out-of-court person’s statement for the truth of the matter asserted. Mother would ask 

to strike that portion of the answer. That is hearsay. 

 MS. LOZA: Would you like me to answer? 

 THE COURT: Yes. 

 MS. LOZA: Judge, at this point, this is relevant for the effect on the listener, not 

for the truth of the matter asserted, why mother might have needed some services, 

why this worker had acted in the way that she did after hearing this. 

 THE COURT: Overruled. You can answer. 

 THE WITNESS: Okay. The clinician explained to us the diagnosis of bipolar 

disorder NOS. She gave us the assessment report. She recommended mom to 

participate in their like outpatient hospital type mental health program, because she 

said she would be able to see a psychiatrist right away with doing that. 

 Q. However, was there an issue with mom participating in that service? 

 A. Yes. At the time, mom had Harmony Insurance, and the program, the 

outpatient program at Ingalls didn’t accept Harmony.

MS. GIPSON: Judge, I could ask, for the record, for the Court to note mother’s 

continuing objection to the answer with regards to the clinician’s statements as 

hearsay. 

THE COURT: Thank you.”
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¶ 22 Ms. Hale went on to explain that the clinician gave Ebony a list of mental health care 

providers that would accept her insurance and Ms. Hale reiterated to Ebony the importance 

of following up with those referrals. That day, Ms. Hale also helped Ebony schedule an 

appointment for a substance abuse assessment because Ebony reported that she was having 

trouble getting through to the treatment center. Ebony told Ms. Hale that she felt she could 

take care of her children and did not need parenting classes. 

¶ 23 On November 27, 2013, Ms. Hale visited the older children at their school. She testified 

that they appeared to be “safe and appropriate.” She also observed the family’s home, noting 

that the heat was off but that Ebony had one or more space heaters in the home “so the areas 

of the home was warm.” Ms. Hale recalled that Ebony said that it was her mother downstairs 

who had turned the gas off “just out of spite or something to that effect.” Ms. Hale discussed 

with Ebony measures she should take to use the heaters safely. At that time, Ebony requested 

bus fare so that she could see about a financial assistance program that would help her get the 

heat back on in the home. Ms. Hale testified that her organization could not help with this 

directly because the utility bill was in Ebony’s mother’s name. During this visit, Ms. Hale 

had Ebony sign a refusal for parenting services and write why she felt that she did not need 

them. Ebony agreed at that meeting to follow up with a mental health service provider. 

¶ 24 On December 9, 2013, Ms. Hale drove Ebony to Healthcare Alternative Systems (HAS) 

for a substance abuse assessment. When the State asked Ms. Hale about the outcome of that 

visit, counsel for Ebony again objected, and the trial court again overruled the objection. The 

following exchange took place: 

“[Assistant State’s Attorney]: And what was the outcome of that assessment?

 MS. GIPSON [(counsel for Ebony)]: Objection, Judge. I believe that the answer 

that the witness intends to give will go into hearsay. 

 THE COURT: Overruled. 

 THE WITNESS [(Ms. Hale)]: The substance abuse counselor who completed the 

assessment and the drug test confirmed mom—

 MS. GIPSON: Objection, Judge. 

 THE WITNESS: —was positive for—

 MS. GIPSON: Objection, Judge. 

 THE COURT: Hold on if you hear an objection. 

 MS. GIPSON: Objection with regard to hearsay. The witness is again testifying to 

the out-of-court statements made by a party—made by an individual who is not a 

party. It is for the truth of the matter asserted. It is hearsay. Mother would ask the 

Court to note a continuing objection to the nature of the testimony given by the 

witness with regards to what she was informed by the various service providers. 

 THE COURT: Continuing objection noted. You can answer. 

 THE WITNESS: The counselor explained that mom tested positive for marijuana, 

which was also stated in the report that she submitted to the agency, and she 

recommended outpatient services for mom.”

¶ 25 Ms. Hale testified that, on the day of the substance abuse assessment, Ebony admitted to 

Ms. Hale that she had used marijuana. Following the assessment, Ebony agreed to participate 

in an outpatient substance abuse program at HAS that included a parenting component. 
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¶ 26 On December 23, 2014, Ms. Hale again observed that the space heaters were keeping the 

home warm and again cautioned Ebony to monitor them, which Ebony agreed to do. At this 

time Ebony told Ms. Hale that she had missed some days of her outpatient programming at 

HAS because HAS was out of bus fare cards. Ebony requested cards from Ms. Hale’s 

organization, but they had also run out.

¶ 27 However, on January 24, 2014, Ebony asked to sign a refusal of services. Ms. Hale 

explained the consequences of doing so, that “if she gets another indicated case, she runs a 

higher risk of having her case screened in with the State’s Attorney to have her children 

recommended for foster care.” Ms. Hale saw the children on that date, and they again 

appeared “safe and appropriate.” Although Ms. Hale testified that she “believe[d] the utilities 

were working” at that time, she also testified that the family was still using space heaters. 

Ebony told Ms. Hale that she suspected her mother of “tampering with the valves or doing 

something with the boiler, because everything was downstairs, and her mother was 

downstairs.” However, at that time, the gas was on in the home, and the family had hot water. 

¶ 28 Ms. Hale’s final visit with Ebony was on February 1, 2014. According to Ms. Hale, the 

purpose of the visit was “[t]o just close out the case, review the final service plan, just to kind 

of reiterate things with mom, encourage her to follow through with services.” By that point 

Ebony was eight months pregnant with Zariyah and told Ms. Hale that she didn’t have the 

energy to engage in services but would follow up with them after she had the baby. 

¶ 29 On cross-examination, Ms. Hale acknowledged that intact family services are voluntary. 

Counsel for Ebony went through each of Ms. Hale’s visits with the family with her, including 

a number of one-on-one conversations she had with each of the six children. Ms. Hale agreed 

that on these visits she saw food in the home and observed no signs of abuse, that the 

children “appeared to be well,” that they were “neatly and appropriately groomed” and 

dressed appropriately for the weather, and that they did not report any concerns to her about 

their home. 

¶ 30 On both November 27 and December 5, 2013, the children told Ms. Hale that they were 

keeping warm. And Ms. Hale testified that she personally observed on December 23, 2013, 

and January 24, 2014, that the space heaters or “fire place heaters” Ebony was using were 

keeping the apartment warm. At Ms. Hale’s last visit on February 1, 2014, Ebony told Ms. 

Hale that she had followed up with public aid and been approved for a Link card and cash 

assistance. Ms. Hale decided to close the case and leave the children in Ebony’s care because 

“[t]here were no issues of abuse or neglect while [Ms. Hale] observed the children.” At that 

time, although all of the utilities were connected, the family was still using space heaters 

because the radiant heaters in the home were not working. 

¶ 31 At no time did Ms. Hale witness a paramour living with the family, the children told her 

their mother did not have a boyfriend, and Ebony told Ms. Hale that she became pregnant 

before DCFS involvement began and was no longer with the father. From September 2013 to 

February 2014, Ms. Hale never saw Merrill or Amari living with the family. 

¶ 32 At this time, counsel for Merrill objected to any use of the testimony of Ms. Hankle or 

Ms. Hale in connection with his children, Zariyah and Amari, who were not physically 

present in the home during the periods of time that those witnesses observed the home or met 

with Ebony. At the State’s request, the court postponed ruling on the objection until after all 

witnesses had testified. But the court never ruled on the objection. 
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¶ 33 C. Events Leading to Protective Custody—Fall 2014 

¶ 34 The State’s last witness, DCFS investigator Priscilla Cash, testified that she was assigned 

to the case in August 2014, in response to a hotline report of inadequate supervision. By that 

time, Ebony had given birth to Zariyah and was living in the home with all seven of her 

children, as well as Zariyah’s father, Merrill; Merrill’s teenage son, Amari; and Amari’s 

teenage half-sister Alexis J., who is not Merrill’s biological child and is not part of these 

proceedings. 

¶ 35 Ms. Cash testified that, during her first visit with the family, on September 2, 2014, 

Merrill and the children reported that Ebony was incarcerated. According to Ms. Cash, 

Ebony was released some time before Ms. Cash’s visit on September 30, 2014. In the 

intervening month, Ms. Cash saw the minors several times, and they appeared to be well and 

were well groomed. The children reported that they were never left alone. Courtney told Ms. 

Cash that, whenever Ebony was in jail, Merrill or Alexis or one of the children’s older 

cousins would take care of them. Ms. Cash observed that the children again did not have beds 

and was told that the family had been forced to dispose of the beds due to an infestation of 

bed bugs. 

¶ 36 By October 2014, Ms. Cash had delivered new beds to the family and was “looking to 

unfound the case” because the children’s basic needs were being met and “they did not 

appear to be at any imminent risk at that time.” In one of their final conversations, Ebony 

thanked Ms. Cash for all she had done for the family. 

¶ 37 However, when Ms. Cash visited the home again on November 18, 2014, Merrill, who 

was there with three of the younger children, told Ms. Cash that Ebony and her mother had 

“gotten into it again” and that Ebony’s mother had called the police and had Ebony arrested. 

According to Ms. Cash, “[i]t was freezing cold outside, and it felt like it was colder in the 

house than it felt outside.” Merrill told her that “the gas was not working in the home at that 

time because [ ] the pipes were [sic] burst.” Ms. Cash observed an electric heater in the 

master bedroom, where the children were, but observed that the room was still cold. She 

recalled that the children were not clean, one of them had a runny nose, and there was “very 

limited food” in the apartment. Ms. Cash told Merrill that the house was too cold for the 

children to remain there. She testified that she “was trying to give him an opportunity” and 

gave him until later that day to identify a warm place for the children to stay but that, when 

she checked back with him later that day, “he was saying he really didn’t have a place” for 

the children to go. She acknowledged that she did not identify any shelters or warming 

centers that he could take the children to. 

¶ 38 Ms. Cash further testified that, although Merrill at first denied using drugs, when she 

asked him what would happen if she “was to drop him right now,” he admitted that he had 

smoked marijuana. Ms. Cash never made any referrals for services to Merrill. 

¶ 39 Ms. Cash also visited the older children at their school on November 18, 2014. According 

to her, “they were dirty that day,” a couple of them “had pretty bad body odors,” and “[t]heir 

hair was not combed.” Ms. Cash interviewed Courtney, who told her that, although the house 

was cold, the bedroom was kept warm and that Courtney’s grandmother “had her mom 

locked back up.” Courtney indicated that, since Alexis had recently run away from home, 

when Ebony and Merrill were not present, 13-year-old Amari would take care of the 

children. When Ms. Cash interviewed Amari, he stated that his father took good care of him. 
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He confirmed that he sometimes watched the other children, “along with a 15 or 16-year-old 

cousin” who “sometimes help[ed].” 

¶ 40 Ms. Cash acknowledged on cross-examination that she was not able to identify how often 

Alexis or Amari watched the younger children, that she did not ask the children what period 

of time the teens provided that care, and that “it could have been five minutes” or “it could 

have been five hours.” 

¶ 41 Ms. Cash then spoke to Ebony by telephone. Ebony told her that she and Merrill were 

trying to get the pipes fixed and get the house fixed up but that her mother would not allow 

anyone to enter the basement to work on the pipes. Ebony believed that she would be 

released from jail on December 2, 2014. 

¶ 42 Ms. Cash saw Merrill at the children’s school later on November 18, 2014, and learned 

that he had taken the two youngest children, Zariyah and DeAngelo, to the home of Shannon 

Lewis. When Ms. Cash went to Ms. Lewis’s home she saw that it was a warm, safe place. In 

fact, Amari and Zariyah were placed in Ms. Lewis’s home after the children were taken into 

protective custody and Ms. Lewis was deemed to be a suitable caretaker for them. Ms. Cash 

further acknowledged that when she spoke to Ebony that day, Ebony advised her that it was 

okay for the children to stay at Ms. Lewis’s house. Ms. Cash nevertheless took the children 

into protective custody. When asked why, she said it was her supervisor’s decision, 

“[s]omeone made the critical decision for [her] to do that,” and “[she] did what [she] was 

told.” When asked on cross-examination if she advised her supervisor that Merrill had found 

a warm, safe place for the children to stay, Ms. Cash stated, “I don’t know what I told her. I 

don’t remember. It’s almost two years ago.” 

¶ 43 In Ms. Cash’s view, the children were at a substantial risk of harm “[b]ased on the 

environment that the children were in, the children being left with a 13-year-old, reports that 

there was domestic violence going on” between Ebony and her mother, as well as Ebony’s 

failure to address her substance abuse and mental health issues. The allegations of inadequate 

supervision she stated were based on “the children being left with a 13-year-old.” When 

asked for the basis for the allegations of environmental neglect, Ms. Cash stated: 

“Very limited food. The source of electricity as far as the children were concerned. 

The children were in a very, very cold environment due to pipes being burst in the 

basement. I was trying to get down in the basement. I’m sure there was mold in the 

house and everything else.”

¶ 44 The trial court admitted into evidence, over Ebony’s objection, five documentary exhibits 

presented by the State. The first of the State’s exhibits was a certified statement of conviction 

indicating that Ebony pleaded guilty to a misdemeanor charge of domestic battery, in that 

Ebony knowingly or intentionally caused bodily harm to a family or household member, Ms. 

Holiday, by pushing her to the ground on August 12, 2014. 

¶ 45 The State also introduced documents created by Ms. Hale—an integrated assessment (IA) 

report dated November 4, 2013, and family service plans dated November 4, 2013, 

December 20, 2013, and January 28, 2014—that tracked the testimony Ms. Hale provided at 

the adjudicatory hearing. 
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¶ 46 In the IA report, Ms. Hale stated that Ebony “was cordial toward [Ms. Hale] and 

expressed her willingness to participate in intact services,”1but that Ebony “disagreed with 

needing some of the services” that were recommended to her. According to Ms. Hale’s 

report, although Ebony “admitted to past marijuana use,” she “denied any substance abuse 

issues.” Ms. Hale also noted that Ebony and her biological mother, Ms. Holiday, had “a very 

conflictual [sic] relationship most of the time.” 

¶ 47 However, Ms. Hale made clear in her report that each of the children appeared to be 

“affectionately bonded” with Ebony and received “the most support and nurturance” from 

her. Ms. Hale believed that Ebony was capable of taking care of her children, stating: 

“Ebony appears to have the capacity to provide an appropriate level of monitoring for 

her children. Allegations of inadequate supervision were previously made against 

Ebony but those allegations were all unfounded. 

 * * *

Ebony is able to self transport and access resources within her community. She takes 

care of her children’s daily needs and ensures that they attend school regularly. Also 

at the onset of her current DCFS involvement, Ebony made a care plan for her 

children and addressed the issues of environmental neglect in her home which 

brought the case to the attention of DCFS.” 

¶ 48 Ms. Hale concluded her report by predicting that the family would remain intact but that 

Ebony needed to follow through with mental health and drug assessments, and that parenting 

classes were “also recommended *** as an added support.” 

¶ 49 In a family services plan also dated November 4, 2013, Ms. Hale stated that Ebony 

“admitted to having mental health concerns that contributed to the state of the home” and 

“acknowledged that her home environment had been neglected” but that she also “denied any 

substance abuse issues[,] *** made a care plan for her children[,] and cleaned up the home 

before their return.” Ms. Hale also noted that Ebony was “constantly getting into 

disturbances with Ms. Holiday, which “required police intervention.”

¶ 50 In a subsequent family services plan dated December 20, 2013, Ms. Hale noted that 

although “there were multiple weeks that the family was not available when [Ms. Hale] 

attempted to conduct home visits *** [Ebony] ha[d] recently been making herself more 

available.” By January 28, 2014, she wrote that “the minors appear[ed] well in the mother’s 

care and attend[ed] school regularly” but that Ebony had refused further intact family 

services and had asked for her case to be closed. Ms. Hale indicated that her next task would 

be to “prepare closing paperwork as directed by [her] supervisor since [Ebony] refused to 

continue with services.”

¶ 51 The State rested, and the trial court denied motions for directed findings filed by both 

Ebony and Merrill. 

¶ 52 Ebony presented a single witness, Linda Jelks, a teaching assistant at Metcalfe 

Elementary School, where Ebony’s five oldest children attended school. Ms. Jelks testified 

that she saw the children every day during the 2014 school year and had conversations with 

James, who was in kindergarten, every day because she worked in his classroom. She had 

 

1

Portions of Ms. Hale’s report and service plan written in all capital letters have been quoted here in 

ordinary type for readability. 
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previously worked for two months in Kamahrie’s classroom and still spoke with Kamahrie 

“quite often, maybe two to three times a week.” She saw the other children around the school 

at lunch or during recess. Ms. Jelks also observed Ebony drop the children off at the school at 

least two or three times a week. Ms. Jelks reported that the children always appeared clean 

and washed to her and never told her that they were hungry or needed clothes. 

¶ 53 D. Closing Arguments and Findings of Neglect 

¶ 54 In its closing argument, the State asked the trial court to find that each of the children was 

neglected, based on an injurious environment and a lack of care, and abused, based on a 

substantial risk of injury. The State emphasized the deplorable conditions of the home when 

DCFS first became involved in June 2013 and the testimony of intact family case worker 

Latonya Hale, who the State said “had problems with mom for the entirety of the case” 

because “[m]other fought services from day one.” In particular, the State emphasized Ms. 

Hale’s testimony regarding Ebony’s mental health and drug assessments:

“However, mother did do a mental health assessment. She was diagnosed with 

bipolar—She was diagnosed bipolar at that time, and she was to follow up with 

outpatient mental health services and was given a long list of providers which the 

caseworker spoke to her about, and—none of which the mother followed up with. 

Mother also did a substance abuse assessment, which she was driven there, and she 

tested positive for marijuana. Mother admitted to having used marijuana while 

pregnant with Zariyah. She was recommended for outpatient services that included 

parenting, and she never finished that program.”

¶ 55 The court-appointed guardian ad litem (GAL) adopted the State’s closing argument, 

adding that by the time Ms. Cash visited the home November 18, 2014, “[t]here were 

ongoing issues with lack of heat” and “it was freezing in the home.” The GAL acknowledged 

that the family was able to clean up the “deplorable conditions” first observed in the home on 

June 28, 2013, but noted that the reason Ebony gave for those conditions, that she was 

“overwhelmed” and “depressed,” was never addressed through her participation in 

recommended services. Like the State, the GAL emphasized the results of Ebony’s mental 

health and drug abuse assessments: 

“So they recommended a mental health assessment for [Ebony], and it wasn’t 

until the intact worker—I think she made, like, 16 attempts, she testified to, to try to 

get mom into the services. She actually went and picked [Ebony] up, took her to the 

mental health assessment, and they did determine at that time that [Ebony] had 

bipolar disorder and needed treatment. And [Ebony]—from that time on until 

the—until protective custody was taken in December of 2014, there was never any 

mental health follow-up for [her]. That placed the children at risk, and it made them 

neglected, your Honor. 

 *** [T]he intact worker tried to get her to go to a substance abuse assessment. She 

finally went and picked her up, took her to the substance abuse assessment, which 

recommended outpatient drug treatment for [Ebony], and she admitted to the worker 

at the time when she was pregnant with [Zariyah], that she was smoking marijuana 

and, in fact, did end up with a positive drop for marijuana yet *** never followed up 

with any kind of substance abuse treatment.”
- 12 - 

The GAL emphasized that it was the combination of problems, “housing issues, substance 

abuse issues, hygiene-of-the children issues, lack of supervision, mental health issues, legal 

issues,” that together amounted to a lack of care and an injurious environment.

¶ 56 Counsel for Ebony characterized the case as “a knee-jerk reaction by DCFS to take the 

children,” a decision she insisted was inconsistent with the actual observations of the 

investigators who were involved with the family. She pointed out that the poor conditions 

DCFS first observed in 2013 were immediately corrected and argued that Ebony’s later 

refusal of services was not relevant. Ebony’s counsel stated: “Essentially what the case is 

about is an attack on the parents’ poverty; that because they were poor and because they 

needed the space heaters, that they were unable—that they were somehow unable to parent 

their children.” 

¶ 57 Counsel for Merrill additionally noted that DCFS never actually referred him to any 

services and asked the court to disregard the family’s “long history” referenced by the State 

because the State had not established when Merrill joined the household. 

¶ 58 In rebuttal, the State again emphasized Ebony’s bipolar diagnosis and refusal of services: 

“And when she got—when she was taken for the mental health assessment, it was 

found out that mother was in fact, bipolar, and she was not following up with 

outpatient mental health services. She was, therefore, not going to the therapy, not 

going to a psychiatrist. She was not getting any medication. She—The minors were in 

substantial abuse, substantial risk of—sorry—they were in substantial risk of injury 

because mother was not doing what she should have been doing. She was not taking 

parenting. In fact, she refused all services.”

¶ 59 On August 1, 2016, the trial court entered separate orders finding each of the children 

was neglected, as defined in section 2-3 of the Juvenile Court Act, based on a lack of 

necessary care (705 ILCS 405/2-3(1)(a) (West 2016)) and an injurious environment (705 

ILCS 405/2-3(1)(b) (West 2016)). The court refused to make a finding of abuse as to any of 

the children. In finding neglect, the court noted in each of the eight adjudication orders that 

one basis was that Ebony had stated that she was depressed and had been diagnosed as 

bipolar but had not followed up with mental health services. 

¶ 60 The trial court also stressed this basis at the close of the hearing: 

“The mom admitted to being stressed and depressed. She also admitted to using 

marijuana. The mom failed to do intact services despite numerous offers. The only 

thing she was able to complete was a mental health assessment where she was found to 

have bipolar disorder. The mother did not do any of the follow-up services. The mother 

has been in jail on at least two occasions between June 2013 and December of 2014.” 

(Emphasis added.) 

¶ 61 Following dispositional hearings in the spring of this year, the trial court also entered 

orders finding Ebony and Merrill unable and/or unwilling to care for the children. Amari was 

placed in the care and custody of his mother, and the other seven children were adjudged 

wards of the court and placed under DCFS guardianship. 

¶ 62 In appeal No. 1-17-0971, Ebony challenges the trial court’s adjudication orders for her 

biological children, arguing both that the court’s findings of neglect based on a lack of care 

and an injurious environment were against the manifest weight of the evidence, and that in 

making those findings, the court improperly relied on certain evidence, including (1) Ebony’s 
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admission of marijuana use made in connection with those services, (2) hearsay evidence 

regarding her mental health diagnosis and drug use, and (3) her unwillingness to engage in 

voluntary intact family services. 

¶ 63 Merrill adopts these same arguments in his appeals (appeal Nos. 1-17-0974 and 

1-17-1059), which challenge the trial court’s adjudication orders for his two biological 

children, Zariyah and Amari. Merrill also argues that the trial court improperly relied on 

evidence relating to the family’s living conditions when his children were not physically 

present in the home. 

¶ 64 II. JURISDICTION 

¶ 65 The trial court entered disposition orders on March 15 and April 17, 2017. These orders 

encompassed the trial court’s earlier findings, made on August 1, 2016, that the children 

were neglected, based on a lack of care and an injurious environment. See In re Barion S., 

2012 IL App (1st) 113026, ¶ 36 (“In juvenile cases, an adjudicatory order is generally not 

considered a final appealable order. [Citation.] Rather, the dispositional order is regarded as 

final and appealable as of right and the proper vehicle to appeal a finding of abuse or 

neglect.”). Ebony timely filed her notice of appeal in appeal No. 1-17-0971 on April 13, 

2017, and Merrill timely filed his notices of appeal in appeal Nos. 1-17-0974 and 1-17-1059 

on April 12 and April 21, 2017, respectively. We thus have jurisdiction over these appeals 

pursuant to Illinois Supreme Court Rules 301 and 303, governing appeals from final 

judgments in civil cases, and Rule 660(b), governing appeals from final judgments in child 

protection proceedings under the Juvenile Court Act. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 

303 (eff. Jan. 1, 2015); R. 660(b) (eff. Oct. 1, 2001). 

¶ 66 We note that, although Illinois Supreme Court Rule 662 (eff. Oct. 1, 1975) provides that 

an adjudication order may be treated as a final and appealable order if a disposition order is 

not entered within 90 days of adjudication and that a notice of appeal must be filed within 30 

days after the expiration of that 90 days, that Rule “has never been amended to reflect the 

current procedure under the Juvenile Court Act,” which calls for an adjudication of wardship 

to occur at the dispositional hearing, and not the adjudicatory hearing. In re Barion S., 2012 

IL App (1st) 113026, ¶ 39. As we have noted before, Rule 662 has no application under the 

current procedures, and appeals from findings of abuse or neglect made at the adjudicatory 

hearing are timely, so long as they are filed within 30 days of the court’s disposition order. 

Id. 

¶ 67 III. ANALYSIS 

¶ 68 A. Timeliness 

¶ 69 Before we address the issues raised on appeal, we find it appropriate to first discuss the 

timing of our decision. This is an accelerated appeal pursuant to Illinois Supreme Court Rule 

311(a) (eff. Mar. 8, 2016). Subsection (a)(5) of that rule provides that we are required to 

issue our decision within 150 days after the filing of the notice of appeal, except where good 

cause is shown. Here, although Merrill and Ebony’s notices of appeal were filed on April 12 

and 13 of this year, making our decisions due by September 9 and 10, 2017, multiple 

extensions of time were requested by the parties, and we revised the briefing schedule to 

accommodate not only those requests but additional briefing and oral argument, which took 

place on November 29, 2017. These three appeals were also initially consolidated on May 
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19, 2017, but then partially severed at Ebony’s request on June 9, 2017. However, in the 

course of considering this case, we determined that certain dispositive issues affect all eight 

minors and reconsolidated the three cases on July 24, 2017. Under these circumstances, we 

find good cause for issuing our decision after the 150-day deadline contemplated by Rule 

311(a)(5). 

¶ 70 B. Procedural Framework for the Issues on Appeal 

¶ 71 The Juvenile Court Act establishes the procedures by which a minor may be removed 

from his or her parents and made a ward of the court. Upon the filing of a petition for 

wardship by the State, an initial custody hearing is held, at which the trial court determines 

whether probable cause exists to believe that the minor is neglected, abused, or dependent. 

705 ILCS 405/2-10(1)-(2) (West 2016). After the temporary custody hearing, an adjudicatory 

hearing is held to determine whether a preponderance of the evidence demonstrates that the 

minor is abused, neglected, or dependent. 705 ILCS 405/1-3(1), 2-21(1) (West 2016). 

Following a finding of abuse, neglect, or dependency, the trial court must then conduct a 

dispositional hearing (In re G.F.H., 315 Ill. App. 3d 711, 715 (2000)) to determine whether it 

is in the minor’s best interest to be made a ward of the court and, if so, to hear evidence 

regarding what disposition will best serve “the health, safety and interests of the minor and 

the public” (705 ILCS 405/2-22(1) (West 2016)). Unlike at the dispositional hearing, where 

the trial court may consider “[a]ll evidence helpful” to a determination of the best interests of 

the child (705 ILCS 405/2-22(1) (West 2016)), at the adjudicatory hearing the rules of 

evidence apply (705 ILCS 405/2-18(1) (West 2016)). 

¶ 72 On appeal, Ebony and Merrill argue that the trial court’s findings of neglect were against 

the manifest weight of the evidence and were improperly based on the court’s consideration 

of inadmissible evidence, including Ebony’s admission that she used marijuana, hearsay 

evidence regarding the results of Ebony’s mental health and substance abuse evaluations, and 

evidence of Ebony’s unwillingness to participate in intact family services. 

¶ 73 Merrill also argues that the testimony of DCFS and intact family services workers whose 

only interactions with the family occurred before Zariyah was born and before Merrill and 

Amari came to live with Ebony should not have been considered in connection with the trial 

court’s findings that Zariyah and Amari were neglected.2

¶ 74 C. Evidence Considered by the Trial Court 

¶ 75 We first consider Ebony’s arguments, joined in by Merrill, that in reaching its findings of 

neglect, the trial court relied on inadmissible evidence. 

 

2 Although, under “Issues Presented for Review,” Merrill additionally indicates that he is 

challenging the trial court’s finding “that it was in the best interest of the minor Amari A. to be 

adjudged a ward of the court,” as well as its finding that Merrill is “unable and unfit to care for the 

minor,” Merrill has included nothing in the body of his brief to support any challenge to the trial court’s 

disposition orders. The issues are forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016). In addition, in 

the fact section of his brief, Merrill expressly states “A[s] Appellant-Father, Merrill A. agrees that 

placement of Amari with his mother Zvial [sic] J., father presents no argument regarding the 

dispositional phase of the hearing regarding Amari.” 
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¶ 76 1. Ebony’s Admission of Marijuana Use

¶ 77 Ebony first argues that it was error for the trial court to allow into evidence Ms. Hale’s 

testimony that Ebony admitted to Ms. Hale that she had used marijuana. Ebony contends that 

this evidence was not admissible because the record demonstrates that she “would not have 

reasonably understood that her admission made during voluntary intact services could be 

used to show that her children were neglected.” In support of this argument, Ebony cites two 

cases holding that, “[t]o be valid, an admission in a Juvenile Court Act proceeding must be 

intelligently and voluntarily made; that is, it must be apparent from the record that the party 

making the admission was aware of the consequences of his admission.” In re Johnson, 102 

Ill. App. 3d 1005, 1012 (1981); see also In re M.H., 196 Ill. 2d 356, 366 (2001) (citing 

Johnson, 102 Ill. App. 3d at 1012-13). 

¶ 78 But in both of the cases that Ebony relies on, the admission in question was not an 

admission by the parent of having engaged in certain conduct but instead a dispositive, 

in-court admission regarding the ultimate issue that was the subject of the proceeding. In

Johnson, the father of a minor entered an admission that the minor was neglected, based on 

his stipulation to all of the facts alleged in the State’s petition for adjudication. Johnson, 102 

Ill. App. 3d at 1009. On appeal, we determined that nothing in the record demonstrated that 

his “admission was intelligently or voluntarily made and that he understood the consequences 

of his admission,” i.e., “that a finding of neglect gives the court jurisdiction [over] the minor 

who then becomes subject to the dispositional powers of the court.” Id. at 1013. Where the 

State’s petition sought only “temporary custody” and “other appropriate relief” (internal 

quotation marks omitted), it was not clear that the father understood that his admission could 

ultimately lead to the loss of his parental rights. Id. 

¶ 79 And in M.H., 196 Ill. 2d at 365-66, our supreme court adopted the reasoning in Johnson

and extended it to a termination of parental rights hearing, holding that a trial court must 

determine whether a factual basis exists for a parent’s admission of unfitness before 

accepting the admission. 

¶ 80 Notably, in Johnson we relied on In re Beasley, 66 Ill. 2d 385, 393 (1977), in which our 

supreme court held that for a court to accept an admission of guilt in a juvenile delinquency 

proceeding, it must be apparent from the record that the minor understands the consequences 

of his or her admission. Although proceedings under the Juvenile Court Act are civil, rather 

than criminal, in nature, the Beasley court based its holding on the requirement, set out by the 

United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 242 (1969), that a guilty 

plea may only be entered in a criminal case where the record shows that the defendant has 

“an affirmative awareness of [its] consequences.” In re Beasley, 66 Ill. 2d at 392. 

¶ 81 Ebony cites no authority applying the rule in these cases outside the context of a guilty 

plea or other dispositive, in-court admission of the State’s allegations, where a parent 

essentially waives the right to a hearing. We reject Ebony’s argument that her out-of-court 

admission of marijuana use is comparable to such a scenario or that the out-of-court 

statements of parents in juvenile proceedings should as a rule be treated differently than the 

out-of-court statements of any other parties in civil cases or, for that matter, statements made 

by criminal defendants while not in custody. See People v. Clay, 211 Ill. App. 3d 291, 302 

(1990) (noting that “[a]ny statement by an accused person, unless excluded by the privilege 

against self-incrimination or other exclusionary rules, may be used against him as an 

admission” (citing People v. Howell, 53 Ill. App. 3d 465 (1977))). 
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¶ 82 Ebony also argues that, because she was required to admit her drug use in order to 

effectively participate in substance abuse treatment, her admission to using marijuana is 

barred by section 2-10 of the Juvenile Court Act, which provides that “[a]cceptance of 

services shall not be considered an admission of any allegation in a petition made pursuant to 

th[e] Act.” 705 ILCS 405/2-10(2) (West 2016). We have recognized that, for it to be 

effective, therapy or treatment may require a respondent to make incriminating disclosures 

(see In re L.F., 306 Ill. App. 3d 748, 754 (1999)). However, we reject Ebony’s argument that 

this kind of admission becomes inadmissible under section 2-10 of the Juvenile Court Act. 

¶ 83 The plain language of section 2-10 creates a very narrow prohibition; the act of accepting 

and engaging in services may not be construed as an admission of the State’s allegations. 

Section 2-10 says nothing about the admissibility of actual admissions made during the 

course of such treatment, whether or not those admissions are necessary for the treatment to 

be effective. We decline Ebony’s invitation to broaden the scope of that section beyond its 

plain language. 

¶ 84 In sum, Ebony’s out-of-court statement to Ms. Hale regarding her marijuana use was 

admissible, pursuant to Illinois Rule of Evidence 801(d)(2) (eff. Oct. 15, 2015), as a 

statement by a party-opponent, and the trial court did not err in relying on it as evidence in 

support of its findings of neglect. 

¶ 85 2. Hearsay Evidence Regarding Ebony’s Mental Health Diagnosis and Drug Use 

¶ 86 Ebony also argues that the trial court abused its discretion by admitting and relying on 

hearsay evidence concerning the results of her mental health and substance abuse 

assessments. Ebony asserts that, over her objection, the State elicited hearsay testimony from 

intact family case worker Latonya Hale and that, although the State represented to the court 

that the testimony was only offered to show Ms. Hale’s course of conduct with respect to her 

referral of services to Ebony, in their closing arguments both the State and the GAL relied on 

the testimony for the truth of the matter asserted. Ebony argues that she was prejudiced 

because the trial court expressly referenced her bipolar diagnosis as a basis for its findings of 

neglect. Merrill joins in this argument to the extent that these same references were made in 

connection with the court’s findings that his two children, Zariyah and Amari, were also 

neglected minors. 

¶ 87 The State and the GAL do not dispute that they referenced Ebony’s bipolar diagnosis and 

marijuana use in their closing arguments and that this was also referenced by the trial court in 

its rulings but insist that other, non-hearsay evidence in the record—including documentary 

evidence and Ebony’s own statements—formed a non-hearsay basis for those remarks and 

for the court’s findings of neglect. Because we conclude, as discussed supra, that Ebony’s 

own statements were admissible as evidence of her marijuana use, we agree with the State 

and the GAL in reference to Ebony’s use of marijuana and need only consider whether 

hearsay statements were impermissibly used to argue and find that Ebony was bipolar. 

¶ 88 We are mindful that, unlike at a dispositional hearing, where any helpful evidence “may 

be admitted and may be relied upon to the extent of its probative value” (705 ILCS 

405/2-22(1) (West 2016)), the normal rules of evidence apply at an adjudicatory hearing (705 

ILCS 405/2-18(l) (West 2016)). Under the rules, “ ‘[h]earsay’ is a statement, other than one 

made by the declarant while testifying at the trial or hearing, offered into evidence to prove 

the truth of the matter asserted” (Ill. R. Evid. 801(c) (eff. Oct. 15, 2015)) and is generally not 
- 17 - 

admissible unless a specific exception applies (Ill. R. Evid. 802 (eff. Jan. 1, 2011)). 

“However, testimony about an out-of-court statement which is used for a purpose other than 

to prove the truth of the matter asserted in the statement is not ‘hearsay.’ ” People v. 

Williams, 181 Ill. 2d 297, 313 (1998). “Statements that are offered to show their effect on [a] 

listener or to explain the listener’s subsequent course of conduct,” for example, are not 

considered hearsay. People v. Sangster, 2014 IL App (1st) 113457, ¶ 76. 

¶ 89 That an out-of-court statement may explain a listener’s course of conduct, however, does 

not mean that the contents of the statement are admissible without limitation. Instead, courts 

must balance “the need to show course of conduct *** against potential prejudice” to the 

opposing party. People v. Vincent, 92 Ill. App. 3d 446, 457 (1980). Thus, “out-of-court 

statements that explain a [person’s] course of conduct should be admitted only to the extent 

necessary to provide that explanation and should not be admitted if they reveal unnecessary 

and prejudicial information.” People v. O’Toole, 226 Ill. App. 3d 974, 988 (1992). For 

example, in criminal cases we have held that, “[t]o establish his course of conduct, a police 

officer may testify that he had a conversation with an individual and that he subsequently 

acted on the information received,” but “cannot testify as to the substance of his conversation 

with the individual because that would be inadmissible hearsay.” People v. Johnson, 199 Ill. 

App. 3d 577, 582 (1990). 

¶ 90 In their briefs, the State and the GAL argue that the admission of Ms. Hale’s testimony 

regarding the substance of her conversation with the mental health clinician was, at most, 

harmless error because there was properly admitted documentary evidence in the record from 

which the trial court could have concluded that Ebony was bipolar. It is true that the 

erroneous admission of hearsay evidence is harmless error where it is merely cumulative of 

other, properly admitted, evidence in the record. Johnson, 199 Ill. App. 3d at 583; see also In 

re A.B., 308 Ill. App. 3d 227, 237 (1999) (holding that testimony about client service plans 

by witnesses with only secondhand knowledge of those contents, though inadmissible, was 

“mere surplusage,” where the plans themselves were entered into evidence and provided 

sufficient support for the trial court’s findings). However, we do not agree with the State and 

the GAL that other evidence presented at the adjudicatory hearing in this case provided a 

non-hearsay basis for the trial court’s finding that Ebony was diagnosed with bipolar 

disorder. 

¶ 91 The State first points to Ebony’s initial admission to Ms. Hankle in 2013 that “she was 

stressed, and she had some depression,” which affected her ability to keep the house clean. 

However, these statements are plainly insufficient to establish that the hearsay evidence of 

Ebony’s bipolar diagnosis was cumulative. A lay person’s recognition that she is “stressed” 

or “ha[s] some depression,” is not the equivalent of a clinical diagnosis by a trained medical 

professional of bipolar disorder. 

¶ 92 The GAL also relies on two documents, neither of which provides admissible evidence of 

Ebony’s bipolar diagnosis. The November 4, 2013, IA report prepared by Ms. Hale states, 

under the “Parent/Guardian Interview” section, that “Ebony did admit to being diagnosed 

with bipolar depression.” The report further states, under “Mental/Emotional History,” that 

“Ebony disclosed that she was diagnosed in the past with bipolar depression” and “she is 

currently not in treatment but mentioned that she participated in counseling before.” A family 

services plan prepared by Ms. Hale on December 20, 2013, provides Ms. Hale’s written 

account of the same information she relayed on the witness stand: “Ebony recently 
- 18 - 

completed a mental health assessment at Ingalls. She was given a provisional diagnosis of 

bipolar D/O NOS. She was stated to be at a low risk of harm but it was recommended that 

she follow up with outpatient psych services to help stabilize her mood.” 

¶ 93 Although the GAL contends that these documents were properly admitted as business 

records under section 2-18(4)(a) of the Juvenile Court Act (705 ILCS 405/2-18(4)(a) (West 

2016)), even if we agree that the foundational requirements of that section were met, that 

argument could only address the first layer of hearsay—the document itself. In the case of the 

IA report, a second layer of hearsay—Ebony’s out-of-court statements to Ms. Hale—likely 

comes within the exception, under Rule 801(d)(2) (Ill. R. Evid. 801(d)(2) (eff. Oct. 15, 

2015)), for admissions by a party-opponent. But for each of the documents, the statement 

ultimately relied upon to establish Ebony’s diagnosis is the out-of-court statement of an 

unidentified medical professional who purportedly relayed the diagnosis, in the first instance, 

to Ebony herself, at an undisclosed time and place and under unknown circumstances, and in 

the second instance, to Ms. Hale following Ebony’s mental health assessment in this case. 

These documents were also hearsay to the extent that the GAL now wishes to rely on them 

for the truth and accuracy of a diagnosis that Ebony suffered from bipolar disorder. 

¶ 94 In sum, we cannot agree that the erroneous admission of Ms. Hale’s testimony regarding 

Ebony’s diagnosis was harmless error because it was merely cumulative of other, competent, 

evidence. 

¶ 95 3. Evidence of Ebony’s Unwillingness to Engage in Intact Family Services

¶ 96 Ebony additionally argues that the trial court erred by denying her motion in limine and 

admitting, over her counsel’s repeated objections, evidence regarding her unwillingness to 

participate in or complete intact family services. Ebony contends both that consideration of 

such evidence is expressly prohibited by the Juvenile Court Act and that it is necessarily 

irrelevant to a court’s determination of whether affected minors are neglected or abused as 

defined by the Act. 

¶ 97 As with the argument we reject in part C.1, supra, Ebony’s statutory argument again rests 

on section 2-10 of the Juvenile Court Act (705 ILCS 405/2-10 (West 2016)). Whether a 

statutory provision places limits on the type of evidence that may be introduced in a 

particular proceeding is a matter of statutory construction that we review de novo. Solon v. 

Midwest Medical Records Ass’n, 236 Ill. 2d 433, 439 (2010). As noted above (supra ¶ 78), 

section 2-10 of the Juvenile Court Act provides that “[a]cceptance of services shall not be 

considered an admission of any allegation in a petition made pursuant to this Act” (705 ILCS 

405/2-10 (West 2016)). That provision goes on to provide that “nor may referral of services 

be considered as evidence in any proceeding pursuant to this Act, except where the issue is 

whether [DCFS] has made reasonable efforts to reunite the family.” 705 ILCS 405/2-10 

(West 2016). The plain language of section 2-10 refers only to the acceptance of services by 

a parent and the referral of services by a social worker. It makes no mention of a parent’s 

refusal of services. And even evidence regarding the acceptance of services is not barred by 

the provision. Rather, section 2-10 of the Act makes it clear that such evidence simply cannot 

be deemed an admission regarding the need for the accepted services. We disagree with 

Ebony that, as a matter of law, section 2-10 of the Act bars evidence that a parent has refused 

services. 
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¶ 98 We consider separately whether such evidence was relevant to the trial court’s finding 

that these minors were neglected, bearing in mind that the relevance and admissibility of 

evidence are matters within the trial court’s discretion, and we will only reverse its findings 

where there is an abuse of that discretion. People v. Garcia, 2012 IL App (2d) 100656, ¶ 17. 

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact 

that is of consequence to the determination of the action more probable than it would be 

without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011).

¶ 99 We agree with Ebony that a parent’s refusal to participate in referred intact family 

services, no matter how unnecessary or unrelated to the facts that brought the case into court 

those services may be, is not automatically relevant to a finding of abuse or neglect. 

However, we also agree with the State and the GAL that, where evidence is presented 

supporting a finding of environmental neglect based on a specific problem—like an untreated 

mental health disorder or substance abuse—evidence regarding whether or not the parent 

engaged in services intended to remedy that problem is indeed relevant at the adjudicatory 

hearing. 

¶ 100 The cases Ebony relies on do not convince us otherwise. Both involve evidence of 

participation in services that took place after the petition was filed and the minor was 

removed from the home, and they stand only for the proposition that evidence of a parent’s 

substantial completion of offered services does not negate the parent’s initial failing that 

triggered State intervention at the time of temporary custody and the filing of the petition. In 

re S.W., 342 Ill. App. 3d 445, 451 (2003); In re Kenneth D., 364 Ill. App. 3d 797, 804 (2006). 

These cases stand for the proposition that a parent’s participation in services after the petition 

has been filed is not relevant to the allegations in a petition for wardship, which relate only to 

whether the minor was abused or neglected at the time he or she was taken into temporary 

custody. Id. They have no application here, where the evidence at issue relates to Ebony’s 

refusal of services prior to the petition being filed. We reject Ebony’s argument that the 

refusal to participate in intact family services can never be relevant at an adjudicatory 

hearing. Indeed, this court recently relied on such evidence to affirm findings of neglect in a 

child protection case. In In re Adam B., 2016 IL App (1st) 152037, ¶ 36, we noted that the 

mother’s failure to provide necessary medical care for her children, “as well as her 

noncompliance with intact services” (emphasis added) constituted sufficient evidence that all 

the minors were abused due to a substantial risk of physical injury and neglected due to an 

injurious environment. 

¶ 101 However, the services refused must be services that the evidence demonstrates have some 

connection to the problems in the home. Because the State failed to present any non-hearsay 

evidence establishing that Ebony suffered from a specific mental health disorder 

necessitating treatment—or at least some ongoing symptoms affecting her ability to care for 

her children that treatment would be likely to address—it failed to establish a foundation for 

the relevance of the evidence that Ebony refused such treatment. Although Ebony admitted at 

one point to being too stressed and depressed to clean her house, the house was clean a week 

later. Evidence of Ebony’s refusal to participate in mental health services should have been 

accompanied by a showing, based on competent evidence, that she needed those services. 

¶ 102 Conversely, because Ebony admitted to using marijuana while she was pregnant with 

Zariyah, evidence of her refusal to receive substance abuse treatment was at least marginally 

relevant, and we do not find the trial court to have abused its discretion in admitting that 
- 20 - 

evidence. We note, however, as discussed in our review of the evidence as a whole, that the 

State failed to present any evidence regarding the frequency of that use or establishing that 

the children witnessed or were otherwise affected by Ebony and Merrill’s marijuana use. 

¶ 103 D. Harmless Error Based on the Sufficiency of Other Evidence 

¶ 104 As discussed above, in their briefs the State and the GAL argued that the admission of Ms. 

Hale’s testimony regarding Ebony’s bipolar diagnosis was, at most, harmless error because it 

was cumulative of other evidence establishing that diagnosis. However, at oral argument in 

this court, the State and the GAL focused on a different harmless error argument, insisting 

that—even if certain evidence was improperly admitted—the trial court’s ultimate findings 

of neglect were amply supported by other admissible evidence unrelated to Ebony’s 

diagnosis and should therefore be affirmed. We find this argument lacks merit. 

¶ 105 We do not do so, however, based on People v. Dennis, 181 Ill. 2d 87 (1998), or People v. 

Coleman, 129 Ill. 2d 321 (1989), the cases relied on by Ebony. Dennis involved an 

instructional, not an evidentiary, error, and it is not clear that the standard the court applied in 

that case is applicable outside of that context. See Dennis, 181 Ill. 2d at 107 (holding that 

“[i]n order for an alleged error in instructions to be considered harmless, it must be 

demonstrated that the result of a trial would not have been different if the proper instruction 

had been given” (emphasis added)). And Coleman involved a violation of the defendant’s 

constitutional rights (Coleman, 129 Ill. 2d at 340), an error for which our supreme court has 

acknowledged there is “a somewhat higher bar *** to be deemed harmless” (In re E.H., 224 

Ill. 2d 172, 180 (2006)). 

¶ 106 An evidentiary error not affecting a constitutional right is harmless where there is “no 

reasonable probability” that the result would have been different absent the error. (Emphasis 

in original.) Id. The argument advanced by the State and the GAL, that we should disregard 

the erroneously admitted evidence in this case and consider whether the remaining evidence 

still supports the trial court’s rulings, is one that our supreme court considered in Gunn v. 

Sobucki, 216 Ill. 2d 602 (2005). As the court in that case explained, “[i]t is true that not every 

defect in trial court proceedings requires reversal of the judgment. Where a case is tried by 

the court without a jury, as this one was, error in the admission of evidence is not grounds for 

reversal so long as there is sufficient competent evidence fairly tending to support the trial 

court’s judgment.” Id. at 612-13. This is the proposition for which the State cited a decision 

of this court, In re Estate of Michalak, 404 Ill. App. 3d 75, 95 (2010). 

¶ 107 However, in Gunn our supreme court went on to state a further consideration not 

addressed in Michalak that “[a] new trial should be ordered only when the evidence 

improperly admitted appears to have affected the outcome of the trial.” Gunn, 216 Ill. 2d at 

613. We know that improperly admitted evidence affected the outcome of a trial where, as in 

Gunn, the remaining evidence was insufficient to support the trial court’s judgment. Id. at 

614-16. 

¶ 108 But we also know it where, as here, the trial court itself made plain that it relied on the 

inadmissible evidence. Although it is true that “[w]hen the trial court is the trier of the facts, 

a reviewing court presumes that the judge considered only admissible evidence and 

disregarded inadmissible evidence in reaching his conclusion” (People v. Cannon, 150 Ill. 

App. 3d 1009, 1016 (1978)), that presumption “may be rebutted where the record 

affirmatively shows the contrary” (People v. Gilbert, 68 Ill. 2d 252, 258-59 (1977)). Here, the 
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trial court specifically referred to Ebony’s bipolar diagnosis and failure to engage in mental 

health services, both in its written adjudication orders and on the record at the conclusion of 

the adjudicatory hearing. Under these circumstances, we cannot say the error was harmless. 

¶ 109 E. Evidence of Events Prior to Zariyah and Amari Living in the Home 

¶ 110 In addition to adopting Ebony’s arguments on appeal, Merrill also maintains that the 

testimony given by Ms. Hankle and Ms. Hale was inadmissible as to his biological children, 

Zariyah and Amari, who did not live in the home with Ebony and the other children during 

the time periods described by those witnesses. Although the trial court never ruled on 

Merrill’s objection to this testimony, he argues that it clearly relied on the challenged 

testimony to find that Zariyah and Amari were neglected. This argument is forfeited, both 

because Merrill failed to secure a ruling on his evidentiary objection (see Fremont 

Compensation Insurance Co. v. Ace-Chicago Great Dane Corp., 304 Ill. App. 3d 734, 741-42 

(1999) (“it is [a] party’s obligation to secure a ruling on [his] objection, and the failure to 

obtain such a ruling operates as a waiver [(forfeiture)] of the objection”)) and because he 

includes in his brief no citations to relevant legal authority in support of this argument (see 

Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016) (noting that argument shall contain citation to 

authorities relied on and “[p]oints not argued are waived”)). 

¶ 111 Even if it the argument were not forfeited, we would find it lacked merit. To be relevant, 

evidence need only have a tendency to make the existence of any material fact more probable 

than it would otherwise be. Ill. R. Evid. 401 (eff. Jan. 1, 2011). Evidence regarding the past 

conditions of the family’s home and the care Ebony provided her other children, while not 

conclusive, was at least relevant to whether Zariyah and Amari, who later came to live in that 

same home with Ebony, were neglected based on a lack of care or exposure to an injurious 

environment. 

¶ 112 F. Sufficiency of the Evidence 

¶ 113 In addition to her evidentiary arguments, for which Ebony asks us only to remand this 

case for a new adjudicatory hearing, Ebony separately urges us to reverse the trial court’s 

findings of neglect outright, insisting that they were against the manifest weight of the 

evidence. However, we conclude that remand, and not outright reversal, is the proper result 

in this case because we agree with the State and the GAL that, based on the evidence that 

was presented, the court’s findings of neglect were not against the manifest weight of the 

evidence. 

¶ 114 It is important to note that, when considering Ebony’s request that we reverse, rather than 

remand, we consider all of the evidence that was before the trial court. People v. Lopez, 229 

Ill. 2d 322, 367 (2008); see also Timothy Whelan Law Associates, Ltd. v. Kruppe, 409 Ill. 

App. 3d 359, 365 (2011) (“We will not strike [the] improperly admitted evidence, reweigh 

the balance of the evidence, and render a decision.”). Here, that includes the hearsay 

evidence of Ebony’s bipolar diagnosis and the related evidence of her refusal to participate in 

mental health treatment. 

¶ 115 We acknowledge that the poor conditions of the family’s home observed by Ms. Hankle 

in June 2013 were immediately remedied to the satisfaction of DCFS. And, as Ebony points 

out, the State failed to link either parent’s marijuana use to ongoing effects on the children’s 

environment or care. But, in addition to the impermissible hearsay evidence of Ebony’s 
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mental health diagnosis there was, for example, evidence of an ongoing domestic dispute 

between Ebony and Ms. Holiday that had resulted not only in Ebony’s incarceration on more 

than one occasion but in an inability to provide the home with consistently working heat for 

nearly a year. Although we agree with Ebony that no one circumstance of this case, standing 

alone, would be sufficient to support a finding of neglect, in our view the evidence as a 

whole was such that the trial court’s finding of neglect was not against the manifest weight of 

the evidence. 

¶ 116 We remand for further proceedings consistent with this opinion. 

¶ 117 We note that, in response to this court’s concerns regarding unnecessarily disrupting the 

present placement of the minors, the parties all advised the court at argument of their 

understanding that, absent a further order of the trial court, the children will remain in their 

current placements pending a new adjudicatory hearing. 

¶ 118 IV. CONCLUSION 

¶ 119 We conclude that it was improper for the trial court to base its findings of neglect on 

hearsay evidence that Ebony was diagnosed with bipolar disorder. Without this foundation, 

evidence that Ebony refused to receive mental health treatment lacked relevance and was 

also inadmissible. Because it is not evident that the trial court would have reached the same 

result without this improperly considered evidence, we cannot say that the net effect of these 

errors was harmless. However, because we conclude that, based on the evidence that was 

presented, the trial court’s finding of neglect was not against the manifest weight of the 

evidence, we remand for a new adjudicatory hearing. 

¶ 120 Reversed and remanded.