No. 2--00--0501

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

In re L.M., a/k/a L.B.,	)	Appeal from the Circuit Court

a Minor,	)	of Lake County.

		)

	)	No.	99--JA--238

	)

(The People of the State of	)	Honorable	

Illinois, Petitioner-Appellee,	)	Joseph R. Waldeck,	

v. W.B., Respondent-Appellant). ) 	Judge, Presiding.

________________________________________________________________

	JUSTICE McLAREN delivered the opinion of the court:

	Respondent, W.B., a/k/a K.B., appeals from an order finding his daughter, L.M., a/k/a L.B., neglected.  The dispositional order

provided that respondent was not to have any contact with L.M. or

the minor's mother, M.M.  Respondent argues on appeal that the

trial court erred when it denied respondent's motion for a directed

finding and found that the neglect petition was proved by a

preponderance of the evidence.  We reverse.

	Respondent was 26 years old when he began dating M.M., who was 

16 years old.  Nine months after respondent started dating M.M.,

L.M. was conceived.  L.M. was born on March 30, 1999.  On July 14,

1999, respondent was convicted of five counts of aggravated

criminal sexual abuse of M.M. (720 ILCS 5/12--16(d) (West 1998)),

and he was ordered not to have any contact with M.M.  On July 15,

1999, M.M. left L.M. in respondent's care.  Because L.M. was left

in respondent's care, the State filed a petition on July 16, 1999,

to adjudicate L.M. neglected.  The petition was filed against both respondent and M.M.  The basis for the neglect petition was that

L.M. had been left in an injurious environment.  The State claimed

that L.M.'s environment was injurious to her welfare because she

was left in respondent's care, and respondent was an untreated sex

offender, having been convicted of aggravated criminal sexual abuse

of M.M. on July 14, 1999.  

	On August 27, 1999, respondent was sentenced to 36 months'

probation for aggravated criminal sexual abuse, and he was ordered

to obtain a sex offender evaluation within 30 days and follow all

recommendations.  The probation order also provided, among other

things, that respondent must support his dependents, not have

contact with M.M. for 12 months, and refrain from any contact with

nonrelated females who are between 12 and 18 years old.  

	On November 4, 1999, the adjudication hearing was held.  At

the hearing, Detective Mark Ross Corbett testified that on July 15,

1999, he participated in a surveillance of respondent's home.  The

officer conducted the surveillance because a warrant for

defendant's arrest had been issued for an unrelated matter.  When

Officer Corbett arrived at respondent's house, he stayed in his car

and did not see anyone around the house.  However, within 10

minutes he saw respondent exit his house carrying an infant. 

Officer Corbett approached respondent, apprehended respondent on

the warrant, and took protective custody of the infant, L.M.  On

cross-examination, Officer Corbett testified that he did not see

respondent harm L.M. in any way, and the officer stated that he

could not remember whether respondent told him that there was

someone in the house who could care for L.M. after Officer Corbett

took respondent into custody.  

	Tim Rossi testified that on July 15, 1999, he was an

investigator with the Illinois Department of Children and Family

Services.  Rossi was called on that date because L.M. had been

taken into protective custody by the police,  and she was in need of

placement.  During his investigation, Rossi talked with M.M.  M.M.

told Rossi that on July 15, 1999, she took L.M. to see respondent

for an indefinite period of time because L.M. needed to bond with

respondent.  M.M. knew that respondent had been convicted of

aggravated criminal sexual abuse on July 14, 1999, but M.M. did not

believe that respondent posed a risk to either herself or L.M. 

Rossi testified that he did not speak with respondent, and Rossi

stated that he did not believe that respondent had sought treatment

as a sex offender.

	Respondent moved for a directed finding, arguing that the

State failed to prove that L.M.'s environment was injurious to her

welfare.  The court denied the motion, finding that respondent was

a sex offender at the time he was caring for L.M.  

	Respondent testified that M.M. brought L.M. to his house on

July 15, 1999.  Respondent's 17-year-old cousin and respondent's

barber were in the house when M.M. arrived.  At around 4 p.m.,

respondent was walking outside with L.M. when the police arrested

him.  Respondent's cousin was in the house at that time, and

respondent testified that he told a detective that the cousin could

watch L.M. until respondent's sister came home from work.

	The court found that the petition to adjudicate L.M. a

neglected minor had been proved by a preponderance of the evidence. 

Specifically, the court stated that L.M. was neglected because she

was left in respondent's care, and respondent was an untreated sex offender, having been convicted of aggravated criminal sexual abuse

the day before L.M. was taken into protective custody.

	Respondent filed a motion for a new trial, arguing that the

State failed to prove the allegation of neglect by a preponderance

of the evidence and that the trial court erred when it denied

respondent's motion for a directed finding.  The trial court denied

the motion, adjudicated L.M. neglected, and ordered respondent not

to have contact with L.M. or M.M. until the court entered a

contrary order.  Respondent filed a motion to reconsider, raising

the same issues he presented in his motion for a new trial.  The

trial court denied respondent's motion, and the court awarded M.M.

the guardianship of L.M.  This timely appeal followed.

	Respondent argues that the trial court erred when it denied

his motion for a directed finding and found that the State proved

neglect by a preponderance of the evidence.  Because these issues

are intricately related, we will address the issues together.  When

a motion for a directed finding is made, the trial court must

determine whether the plaintiff (State) has made out a prima facie case and then weigh the evidence, including the evidence that

favors the defendant (respondent).  Orbeta v. Gomez, 315 Ill. App. 3d 687, 690 (2000).  If the trial court finds after weighing the

evidence that the plaintiff's prima facie case has been negated, the court should grant the defendant's motion for a directed

finding and enter a judgment for the defendant.  Orbeta, 315 Ill. App. 3d at 690.  On appeal, the reviewing court will not disturb

the trial court's finding unless it is against the manifest weight

of the evidence.  Orbeta, 315 Ill. App. 3d at 690.  A finding is against the manifest weight of the evidence if the facts clearly show that the trial court should have reached the opposite result. 

In re N.B., 191 Ill. 2d 338, 346 (2000).

	In a proceeding to adjudicate a minor neglected, the State

must establish neglect by a preponderance of the evidence, which is

proof that any finding of neglect is more probably true than not

true.  In re N.B., 191 Ill. 2d at 343.  An injurious environment is a basis for a finding of neglect (705 ILCS 405/2--3(1)(b) (West

1998)), and the term "injurious environment" is an amorphous

concept that cannot be defined specifically.  In re N.B., 191 Ill. 2d at 346.  However, courts have interpreted "injurious

environment" to include a breach of the parents' duty to provide a

safe and nurturing shelter for their children.  In re N.B., 191 Ill. 2d at 346.  Because rulings in cases involving neglect and

injurious environment are fact-driven, a reviewing court will only

reverse the trial court's judgment if the judgment is against the

manifest weight of the evidence.  In re N.B., 191 Ill. 2d at 346.

	Here, the trial court found that L.M. was a neglected minor

because she was left in respondent's care on July 15, 1999.  When

L.M. was left in respondent's care, respondent, having had a sexual

relationship with L.M.'s minor mother, was considered a sex

offender.  At the hearing, no evidence was presented that

respondent harmed L.M. in any way.  Thus, the only basis upon which

the trial court found neglect was the fact that respondent was a

sex offender and was caring for L.M.  We determine under the

circumstances presented in this case that respondent's status as a

sex offender alone, in the absence of other factors, does not

establish an injurious environment.  Therefore, we conclude that

the trial court's ruling denying respondent's motion for a directed finding and its order adjudicating L.M. neglected should be

reversed.  

	We note in reaching this conclusion that courts in other

jurisdictions have found that a father's sex offender status

without more cannot form the sole basis for restricting the

father's parental rights.  See State v. Coreau, 651 A.2d 319, 320 (Me. 1994) (father who committed heinous sex crime against

nonrelated 14-year-old girl could not be prohibited contact with

his minor children as a condition of his probation); In re Cruz, 164 Or. App. 178, 188, 990 P.2d 922, 927 (1999) (reviewing court

determined that the father, who was a sex offender and had affairs

with teenage girls, was not a threat to his minor daughters). 

Moreover, courts have recognized that the mere fact that an adult

male fathers a child with a minor cannot be the only basis for

denying the father contact with that child.  See In re Brandie W., 157 Cal. App. 3d 110, 114, 203 Cal. Rptr. 537, 540 (1984) (the best

interests of the child are served when an adult father, who could

have been prosecuted for statutory rape against the minor mother,

is allowed visitation with the child that was born because of the

affair); cf. E.R. v. D.T, 77 Misc. 2d 242, ___, 353 N.Y.S.2d 612, 615 (1974) (reviewing court recognized a father's right to visit a

child born out of wedlock but denied the 61-year-old father

visitation given the father's age and the animosity between the 61-

year-old father and the parents of the 13-year-old mother).

	The State argues that the trial court's order should be

affirmed because evidence that respondent sexually abused another

minor, M.M., is sufficient to establish an injurious environment. 

The cases the State relies on in making its argument are clearly distinguishable from the facts presented in this case. 

Specifically, the cases the State cites involved the father abusing

children who were under the father's care.  See In re M.D.H., 297 Ill. App. 3d 181, 189-90 (1998) (minor's environment could be

injurious based solely on the fact that father molested the minor's

brother for whom the father cared); In re M.K., 271 Ill. App. 3d 820, 827 (1995) (when father abuses his own children the court need

not wait until other children under the father's care are harmed

before removing the other children from the father's home); In re A.D.W, 278 Ill. App. 3d 476, 482 (1996) (father's daughter's environment was injurious based on fact that father had fondled the

breasts of his stepdaughter).  Here, in contrast to the cases cited

by the State, respondent did not sexually abuse a minor in his

care.  Rather, respondent was convicted of sexually abusing a minor

to whom he was not related, with whom he did not live, and for whomwith

whose care he was not entrusted with her care.  Given these distinguishing facts,

we determine that the State's argument lacks merit.   

	For the reasons given, the judgment of the circuit court of

Lake County is reversed.

	Reversed.

	GEIGER and BOWMAN, JJ., concur.