## 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 A.P. , 2012 IL App (3d) 110191

Appellate Court Caption In re A.P. and J .P., Minors (The People of the State of I llinois
, PetitionerAppellee , v. L isa P., Respondent-Appellant)

.

District & N o. Third District Docke t No. 3-11-0191

Rule 23 Order

filed Motion to publ ish allowed Opinion filed Dec ember 12, 2011

J anuar y 20, 2012
J anuar y 20, 2012

Held (Note : This syl l abus

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the R e

por te r 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

. ) The trial c ourt’s adjudication that responde nt’s children w ere neg lected due to an environment injur i o us to their welfa re was reve rsed, notwithstanding th e fa ct that the young est child suffe red a burn on his fac e from hot water while responde nt’s boyfriend was prepa ring the child for a bath, sin ce the boyfriend’ s actions in leaving the child in the tub with the water running wer e unintentional and not wilful, responde nt had

no previous rea son to suspect her boyfriend would be neg lectful in caring for her children, and there was no indication she allowed him to be around her children afte r the incident or that she maintained a rela tionship with him, and further

more, the trial court err ed in admitting rec ords that

wer e not made in the regular course of the business of a h o s p ital or ag ency but, rather , wer e prepare d in anticipation of litigation.Dec ision Under

Review Appea l from the Circuit Court of Peoria County
, Nos. 10-JA-338, 10-JA339; the Hon. Mark E . Gilles, J udg e, pre siding.

J udg ment Reverse d.

Counsel on Appea l L ouis P. Mi lot, of Peoria, for appellant.

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

. Kelly
, both of State’s Att orney s Appellate Prosecutor’ s Offic e, of counsel), f

or the People.

Panel J USTI CE McDADE de livered the judgme nt of the cour t, with opinion.
J ustices O’B rien a

nd Wright conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Following an adjudication hearing, the trial court found that A.P

. (ag e 3) and J .P. (ag e 7) wer e neg lected due to an environment injurious to their welfa re (705 I L CS 405/2-3(1)(b) (West 2010)). At the subsequent dispositi onal hearing, the trial court found that the responde nt, L isa P., was a fit pare nt and closed the minors’ case s. On appea l, the responde nt argues that: (1) the trial court’s finding that A.P. and J .P. wer e neg lected minors was ag ainst the manifest weight of t h e ev idence ; and (2) the trial court err ed in denying her motion in limine and admitting letters and repor ts from t h e P ed i atric Resource Center (PRC). We

reve rse.

¶ 2 FACTS ¶ 3 On November 23, 2010, the State filed a juvenile petition alleg ing that A.P. was abused beca use, on August 17, 2010, the responde nt’s boyfriend inflicted phy sical injury upon A.P., by other than acc idental means, in that he burned A.P. with hot water , causing second- degree burns. The State also alleg ed that both A.P. and J .P. wer e neg lected in that their environment

was injurious to their welfa re beca use: (1) the responde nt’s boyfriend had burned A.P.’s fac e with hot water by other than acc idental m eans; (2) the burns to A.P.’ s fa ce could not have

occur red absent abuse or neg lect on the part of the boyfriend; and (3) the boy friend initially lied to police but later admitted that he had left the minors unsupervised with the bathwate r running whi l e h e we n t o utside to smoke a cig are tte. In her answe r to the petition, the

-2-responde nt stipulated that her boyfriend initially lied but later admitted to leaving the minors

unsupervised w ith the bathwater running

. ¶ 4 Prior to the adjudication hearing, the responde nt filed a motion in limine to exclude from evidenc e rec ords from the PRC

. The responde nt argued that the rec ords wer e not made in the
regu l ar course of business and wer e being introduced as a substitut e for expert medical testimony

. The responde nt c ontended that the rec ords wer e those of a consulting phy sician
prepa red in an t i ci p at ion of litigation, which contained opinions or conclusions as to the

source of injury to A.P. The trial court d en i ed the motion in limine and admitted the PRC

rec ords into evidence

. ¶ 5 Acc ording to the PRC rec ords, the Depa rtment of Children and Family Service s’ (DCF S) investigatory notes indicated that: (1) the responde nt had stat ed t h at s h e was on her way home from a doctor’s appointment when her boy friend called and told her that A.P. had burned his fac e i n the bathtub; (2) the boyfriend told the responde nt that the incident

occur red while he was looking at himself in the mirror; (3) the responde nt arrived 10 minutes later and took A.P. to the h o s p i t al; (4) DCFS investigators wer e unable to confirm the temperature of the water in the boy friend’ s home; (5) the responde nt’s boyfriend was caring for his own 5- and 10-year -old children, in addition to A.P

. an d J .P., at the time of the i n ci d en t ; (6 ) the mother of the boyfriend’ s 5-year -old child indicated that he was a g oo d
pare nt; (7) the boyfriend initially repor ted being in the bathroom at the time of the incident but later repor

ted being in the den at the time of the incident
, and then chang ed his story ag ain to indicate that he was in front of the house when the incident occur red; (8) the boy friend initially repor

ted that the other children wer e in the baseme n t at the time of the incident but later indicated that two of the other m inors wer e in t he den w atchingcar toons when A.P. was injured; (9) the boyfriend lied about the incident beca use he did not want the

res p o n d en t to be mad at him; (10) when the incident occur red, the boyfriend hear d A.P.

scre am, so he ran to the bathroom and found A.P. standing by the bathtub’s fauc et; (11) the responde nt ha d previously spoken to the boyfriend about the water in he r home g etting too hot when they washe d t h ei r h an d s; (12) the boyfriend’ s 10-year -old child repor ted that he

was in the baseme nt and the other children wer e in the den when the incident happene d; and (13) a fter the incident, t he 10-year -old child observe d the re spondent’s boyfriend a pplying ice to A.P.’s fac e. A time-temperature exposure char t in the PRC rec ords indicated that water at a tempe rature of 140 degree s or higher w ould scald a c hild’s skin in one second or le ss. ¶ 6 The P RC rec ords co n t ai ned a repor t by Dr. Channing P etrak, in which she opined that A.P.’s burns wer e “most consistent with inflicted burns due to child phy sical abuse.” Petrak based her opini on upon the fa ct that A.P. had no burns on his hands or arms, which would have been expected beca use “childr en put their hands out to catc h themselves when they fall.” Petrak noted that based on the measure ments of the bathtub and A.P.’s height, “it is not probable that [A.P .] would have been able to fall and catc h himself in a way that only his left side of his fac e, ear and back of his neck wer e burned.” Petrak further noted that if A.P. had tried to rea ch for toy s “the fauc et would have been on his right side, not his left,” and if A.P. had his head turned “to g et onl y the l eft side of hi s fac e un d er t h e fa u ce t, then i t would be expected that the runoff of the water would have burned his left shoulder” and A.P. did not have bur ns on his left shoulder.

-3-¶ 7 The State also enter ed A.P.’s hosp i t al records into evidenc e. A.P.’s emerg ency room (ER) rec ords for August 17, 2010, indicated that the responde nt repor ted to ER staff that her boy friend was runningbathwate r whe n A.P. ran into the bathroom to g et a toy and slipped and fell head first into the bathtub. The ER rec ords indicated that A.P. had first- and seconddegree scald burns to 8% of the left side of his head. The ER rec o rd s n o t ed that A.P.’s
materna l grandmother stated that A.P. had previous visits to the ER for falls and cuts to his fac e, with the re spondent’s boyfriend ha ving be en involved. ¶ 8 A.P.’s medical reco rd s , fr o m J u ly 28, 2009, and J anuar y 2, 2010, indicated that A.P. incurre d a lace ration to his lower lip afte r he slipped from the side of a bed and struck his lip

on the bedrail, and he incurre d a laceration to the l eft side of hi s fore head after he ran into

a desk draw er at the respon d en t’s gy m. There was no indication that the responde nt’s boy friend w as involved in either of the pre vious incidents. ¶ 9 T h e responde nt testified that on August 17, 2010, her boy friend was b ab y s i t t i n g t h e minors while she went to a doctor’s appointment. After her appointment, the responde nt was returning to he r boy friend’ s home when he called and said that A.P. had bur ned his f ace in the bathtub. The responde nt a rrived at her boyfriend’ s home 10 minutes later and observe d that A. P

. had burns on the left half of his fac e that wer e “like a sunburn” and looked “super ficial” on the “outsi de of his ski n.” The responde nt immediately transporte d A.P. to the ER. ¶ 10 The responde nt te stified that there had never been any incidents of abuse involving her boy friend and the minor s

. S h e testified that A.P. had been taken to the hospital on two previous occa sions. She described the first incident as occur ring when A.P. was one year old, when he slipped off a bedra il and spl i t h is lip open at the home of the minors’ materna l
grandmother. S h e d es cribed the second incident as occur ring when A.P. was almost two year s old, when he f

ell into a desk dra

wer and split his forehea d open at he r gy m. ¶ 11 At the conclusion of the adjudication hearing, the trial court stated that it could not find by a preponde ranc e of the evidenc e that A.P.’s injuries wer e cause d by abuse. The trial court found that because the responde nt’s b o y friend lied about what had occurre d, it was “more likely th an n o t [that] he was neg lectful in watching [A.P .]” and “he was trying to defe nd himself with reg ard to his neg lectful actions.” The trial court found t h at t h e minors wer e neg lected du e to an injurious environment beca use the responde nt’s boy friend was a “big part” of their e nvironment if he wa s g iving them baths. ¶ 12 At the subsequent dispositi onal hearing, the trial court f ound that the re spondent was a fi t p are nt and order ed that the minors’ case s be closed. The responde nt appea led from th e findingof neg lect due to a n injurious environment.

¶ 13 ANALYSI S ¶ 14 On appea l, the responde nt contends that the trial court err ed in admitting the PRC rec ords into evidence and adjudicating the minors ne g lected. We a gree

. ¶ 15 Initially
, we addre ss responde nt’s argument reg arding the admission of the PRC rec ords. The State argues that the PRC rec ords wer e properly admitted as a business rec ord under section 2-18(4) (a) of the J uvenile Court Act of 1987 (Ac t) (705 I L CS 405/2-18(4)( a) (West

-4-2010)). Sec tion 2-18(4)(a) of the A ct provides: “Any writing
, rec ord, phot ograph, or x -ra y of any hospital or publ ic or private ag ency , whether in the form of an entry in a book or otherwise, made as a memorandum or rec ord of any condition, act, transac tion, occur renc e or event relating to a minor in an abuse or neg lect or depende ncy proce ed i n g, shall be admissible in evidenc e as proof of that condition, act, transac tion, occur renc e or event, if the court finds that the docume nt was made in the regular course of the business of the hospital or agency and that it was in the
regular course of such business to make it, at the time of the act, transac tion, occur renc e

or event, or within a rea s o n ab l e t ime there afte r.” (Emphasis added.) 705 I L CS 405/2- 18(4)( a) ( West 2010). ¶ 16 In this case , A.P. incurre d a burn on August 17, 2010. He was immediately taken to the local emer g ency ro o m and then transporte d to a burn unit at Memorial Medica l Center in Springf ield, I llinois

. He was discharg ed the following day
, August 18. The same day of his discharg e from the hospital, DCFS ref err ed A.P. to the PRC for an examination. On August 19, 2010, A.P. was examined at the PRC as the result of t h e re fe rr al from DCFS. Dr. Channing Petrak examined A.P. and revie wed DCFS notes, photos taken by DCFS, and A.P.’s medical rec ords. We note that the PRC examination was not part of A.P.’s follow-up medical c are , as he w as see n in follow-up at the Memoria l Medical Center outpatient burn
cente r on August 24, 2010, with the examination notes indicating his burns had heale d well. It was not unt i l t h re e months later, on November 24, 2010, that Petrak iss ued a repor t and

o p i n ed th at A.P.’s burns wer e “most consistent with inflicted burns due to child phy si ca l abuse.” The PRC rec ords and Petrak’s repor t wer e not made in the reg ular course o f t h e business of a hospital or age ncy but rathe r appear t o h av e been prepare d in anticipation of litigation. Thus, the trial c ourt abused its discre tion by admitting them into evidenc e. ¶ 17 Next, we turn to the issue of whether the trial court err ed in finding that the minors w ere neg lected. A proce eding for adjudication o f wa rd s hip is a signific ant intrusion into the sanctity of the family which should not be undertaken lightly

. In re Arthur H.
, 212 I ll. 2d 441 (2004). It is the burden of the State to prove its alleg ations of neg lect by a preponde ranc e of the evidenc e, meaning that the State must e stablish that the alleg ations of neg lect are more probably true than not. Arthur H.
, 212 I ll. 2d 441. On appea l, a trial court’s finding of neg lect will not be reve rsed unless it was ag ainst the manifest weight of the evidenc e. In re Faith B.
, 216 I ll. 2d 1 (2005). A court’s rulingis ag ainst the manifest we ight of the evidenc e only

if the opposite conc lusion is clearly evident. Faith B. , 216 I ll. 2d 1. ¶ 18 Gene rally
, neg lect is the failure to exercise the car e that circ umstances justly demand and
encompa sses both wilful and uni n t en t i onal disreg ard of a duty

. In re N.B.
, 191 I ll. 2d 338 (2000). Section 2-3 of the Act provides that a “neg lected” minor includes “any minor under 18 y ea rs o f age whose environment is injurious to his or her welfa re.” 705 I L CS 405/2- 3(1)(b) (W est 2010). An injurious environment does not have a fix ed definition, requiring

eac h case to be analy

zed under its own unique circ umstances. Arthur H.
, 212 I ll. 2d at 463. In g ener al, howeve r, the term “injurious environment” means a brea ch of a pare nt’s duty to

ensure a saf

e and nur turingshelter f

or his or her

children. Arthur H. , 212 I ll. 2d at 463. ¶ 19 Her e, the trial court deter mined that the boyfriend’ s neg lectful actions leading to A.P.’s

-5-sever e injuries and the fac t that the boy friend had l ied about the incident wa s indicative of

an injurious environment. In defining a neg lected child in the Act, the leg islature focuse d on the status of the child, g iving consideration to the acts or omissions of the child’s pare nts or other individual responsible for the welfa re of the child. Arthur H.
, 212 I ll. 2d at 462 (citing 705 I L CS 405/2-3(1 )( a) through (1)( d) (West 2000)). Only afte r the trial court has adjudicate d a minor neg lected does the court consider the actions of the pare nts. Arthur
, 212 I ll. 2d at 466-67; see 705 I L CS 405/2-21(1) (West 2010). There fore
, the only question to be resolved at an adju d i ca t o ry hearing is whether the child is neg lected and not whether the
pare nt is neg lectful. Arthur H. , 212 I ll. 2d at 466-67. ¶ 20 The trial court adjudicated th e minors to be negle cted due to an environment injurious
to their welfare
, even though the responde nt had no previous rea son to suspect that her boy friend would act neg lectfully in ca ri n g fo r them or his own children. Also, there is no indication that the respo ndent allowed her boyfriend to be around the minors afte r the incident or that she maintained any ty pe of relationship with him. Effe ctively
, the trial court’s deter mination was a per se finding of an injurious environment based upon the fac t that A.P.

wa s i njured due to the boy friend’ s neg lectful actions. As a matter of common sense, an y mishap or injury incurre d by a minor can be attributed to some neg lectful action on the part of a car eg iver. S uch a broad definition of a “neg lected minor” contra dicts case law, which has established that neg lect is to be deter mined on a case -by-ca se basis. See In re M.Z.
, 294 I ll. App. 3d 581 (1998). It is clea r from the rec ord that the responde nt’s failure to provide a safe environment for A.P. was unintentional and not wilful

. “[ A]ny alleg ation of unintentional disreg ard ba sed on a ba by -sitter’s inappr opriatene ss as a c are g iver c annot be deeme d per se neg lect; the State must prove by a preponde ranc e of the evidenc e the neg lect charg ed ***.” M.Z. , 294 I ll. App. 3d at 599. ¶ 21 We must consider all the surrounding circumstance s to determine whether the minors’ environment was injurious to their welfare

. The evid ence showed that the respondent left 1 A.P. and J .P

. i n t h e car e of her boy friend while she went to a doctor’s appointment. As previously noted, there was no indication that the responde nt’s boyfriend could not provide a saf e and nur turingshelter f

or the duration of the responde nt’s doctor appointment. There

was no indication that the responde nt’s boy friend ever harme d the minors in the past. Hospital rec ords and the responde nt’s testimony estab l i shed that A.P.’s prior two injuries

wer e ac cidents in which the r espondent’s boyfriend ha d no involvement. ¶ 22 As for the incident at hand, it occur red wh en re s p o n d en t ’s boyfriend left the minors unsupervised with bathwate r running

. Although there was some speculation as to what may

T he Sta te ’s pet it ion did not al le ge neglec t base d upon inad equ at e supervisio n pursu ant to 1

sec ti on 2- 3(1 )( d) of the Act
, whic h enum er at es 15 fa ct ors to be con si der ed in det erm ini ng whet her

a m ino r was le ft wit h ina dequat e sup ervisio n. See 705 I LCS 405/ 2- 3(1 ) (W est 2010 ). T her ef ore , we

re view thi s cas e sol el y to det erm ine whet her the tr ia l c o u r t ’ s fi ndi ng of neglec t bas ed upon an inj uri ous envir onment was sup porte d by the eviden ce. See In re J.B. , 312 I ll . App. 3d 1140 (200 0) (pr ovidi ng tha t the Sta te ’s fa il ure to amend the pet it ion to inc lud e al le gatio ns of ina dequat e sup ervisio n barr ed the tr ia l court fro m ent er ing a fin din g on any cl ai m s othe r tha n thos e all eged in the pet it ion ).

-6-have occur red, there wer e no witnesses to the incident, and the trial court found that A.P.’s injuries wer e not the result of abuse. After A.P. was injured, the boy friend immediately aided A.P. and called the responde nt. The responde nt arrived within 10 minutes and immediately b rought A.P. to the ER. There fore
, the circ umstances show that the responde nt an d h er boy friend rea cted ap p ro p ri at ely to the i ncident, providing i mmediate aid and medical car e to A.P. ¶ 23 Additionally
, the trial court’s finding that responde nt’s boyfriend was a “big part” of the minors’ en v i ro n m ent beca use he g ave them baths on the day of the incident was mere ly speculative. Although the incident occur red in the boyfriend’ s home, there was no evidenc e that the minors lived with him or of what ty pe of involvement they may otherwise have had with him. Also, there was no indication that the minors wer e left in the boy friend’ s car e afte r the incident. In viewing all the circ umstances surrounding this case , we conclude that the trial court’s finding of neg lect due to a n injurious e nvironment was ag ainst the manifest weight of the e vidence

.

¶ 24 CONCLUSI ON ¶ 25 For the fore g oing rea sons, the judgme nt of the Peoria County circ uit c ourt findingA.P. and J.P . to be neg lected due to an injurious environment is reve rsed.

¶ 26 Reverse d.

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