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In re T.W.

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT


January 19, 2000

IN RE T.W., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE, V. C.W., RESPONDENT-APPELLANT).

Appeal from the Circuit Court of Du Page County. No. 97--JA--167 Honorable Elizabeth W. Sexton, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Respondent, C.W., appeals from the trial court's order adjudicating her son, T.W., a neglected minor under section 2--3(1)(a) of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/2--3(1)(a) (West 1998)). We reverse.

The State filed its original neglect petition on December 23, 1997, alleging that T.W. was neglected under sections 2--3(1)(a) (lack of proper support, education, or care) and 2--3(1)(b) (environment injurious to the minor's welfare) of the Act. See 705 ILCS 405/2--3(1)(a),(1)(b) (West 1998). C.W. denied the substantive allegations and the allegation that it was in T.W.'s best interest to be made a ward of the court. T.W.'s father neither admitted nor denied the petition.

An adjudicatory hearing was held on May 1, 1998. Eleven exhibits were admitted into evidence by stipulation. These exhibits consisted of a police report and an ambulance report from December 22, 1997, and medical reports from Good Samaritan Hospital regarding C.W.'s hospitalization for pancreatitis on December 22 and 23.

The only testimony presented was that of C.W., who stated that she and T.W. were at home at approximately 7 p.m. on December 22, 1997. C.W. was intoxicated at that time. Kevin Wynard from the Family First social agency stopped by for a visit regarding a prior, unrelated contact. C.W. refused to answer the door because Wynard "had no right" to be at the house. Soon after, Wynard returned with police and paramedics, and C.W. was taken to the hospital. When asked if she thought that she was capable of taking care of T.W. on December 22, 1997, C.W. replied, "Yes I do. I know I was." She also stated that she thought that her consumption of alcohol that day had "[s]omewhat" impaired her ability to be an effective parent in that she "wasn't as quick." However, T.W. had eaten "every two hours" that day. C.W.'s request to be taken to the hospital was not based on her intoxication. No other testimony was given.

The court found the neglect petition proved as to section 2--3(1)(a) (705 ILCS 405/2--3(1)(a) (West 1998)) (lack of proper support, education, or care) but not proved as to section 2--3(1)(b) (705 ILCS 405/2--3(1)(b) (West 1998)) (injurious environment). After a dispositional hearing, at which no evidence was taken, the court found that it was in T.W.'s best interest to be adjudicated a neglected minor and that DCFS be named as T.W.'s guardian. C.W.'s motion to reconsider was denied. This appeal followed.

C.W. contends that the court's finding and adjudication of neglect are against the manifest weight of the evidence and must be reversed. We agree.

The State must prove neglect by a preponderance of the evidence. In re M.K., 271 Ill. App 3d 820, 826 (1995). Preponderance of the evidence is proof that leads the fact finder to find the existence of the issue in fact is more probable than not. In re C.C., 224 Ill. App. 3d 207, 215 (1991). A trial court's finding of neglect will be disturbed in this court only when it is against the manifest weight of the evidence. M.K., 271 Ill. App. 3d at 826. A finding is against the manifest weight of the evidence if a review of the record clearly demonstrates that the proper result is the one opposite that reached by the trial court. M.K., 271 Ill. App. 3d at 826. Cases involving adjudication of neglect are sui generis and ultimately must be decided on the basis of their own particular facts. In re M.B., 241 Ill. App. 3d 697, 705 (1992).

The trial court found as proved paragraph 3.2 of the neglect petition, which alleged:

"That said minor is a NEGLECTED MINOR as defined by 705 ILCS 405/2--3(1)(a) in that said minor is under the age of 18 whose parent or parents responsible for the minor's welfare does [sic] not provide the proper or necessary support, education as required by law, or medical or other remedial care recognized under State law as necessary for a minor's well-being, or other care necessary for his well-being, including adequate food, clothing and shelter."

Our review of the evidence does not disclose that C.W. failed to provide proper or necessary support, education, medical or remedial care, or other care necessary for his well-being, including adequate food, clothing, and shelter. The State's exhibits show that C.W. was alert but confused, highly intoxicated (a blood-alcohol reading of .354 was obtained at the hospital), and uncooperative with authorities on December 22, 1997. However, there is no evidence that C.W. failed to provide the care necessary for T.W.'s well-being. There is no evidence that T.W. was malnourished, sickly, ill-clad, or living in inadequate or filthy housing. Exhibit 1, a sheriff's police report, contained the statement that Kevin Wynard thought that C.W. "was unable to care for her son." However, there is no evidence that T.W. was denied anything vital to his welfare, even if C.W. "wasn't as quick" because she had been drinking.

The dissent opines that the mere consumption of alcohol at four times the legal limit for driving a motor vehicle is sufficient to establish neglect. There was no physiological or anecdotal evidence as to a parallel between driving a motor vehicle and caring for a minor, let alone what effect this blood-alcohol level had upon this particular respondent.

We believe that a person may be neglectful with a substantially lower blood-alcohol level in his/her body. However, the record must contain evidence that the blood-alcohol level sufficiently affected the respondent so as to cause her to be neglectful, not merely intoxicated. Blood alcohol is a piece of evidence, a factor to be considered with other facts to establish neglect; it does not constitute proof of neglect as alleged in this case.

The State argues that this court should not delay finding a lack of care "until dire consequences occur." This court can only base its decisions on the facts in evidence in the case before it. The State had its opportunity to present evidence of a lack of support for T.W. or to allege and prove neglect under other grounds provided in the Act. The State failed to do either. The trial court's finding and adjudication of neglect were against the manifest weight of the evidence. Therefore, the trial court's judgment must be reversed.

Because of our disposition of this issue, we need not address C.W.'s other contention.

For these reasons, the judgment of the circuit court of Du Page County is reversed.

Reversed.

INGLIS, J., concurs.

JUSTICE GEIGER, dissenting:

I respectfully dissent from the majority's opinion, as I believe that the neglect petition was proved as to section 2--3(1)(a) (705 ILCS 405/2--3(1)(a) (West 1998)) (lack of requisite support and care). A review of the record reveals that in August 1997 C.W. admitted herself to a psychiatric hospital. At that time, she contacted the Department of Children and Family Services. As a result of that contact, a social worker from Family First visited her home following her release. The social worker, Kevin Wynard, visited the home to check on T.W. two or three times per week through the first week of December 1997.

On December 22, 1997, Wynard came to the home, and C.W. refused to answer the door. The evidence shows that, after having consumed at least six beers, C.W. was alone with T.W., who was two years old. The record also reveals that C.W.'s blood-alcohol level was .354 during the incident at issue.

It is noteworthy that the Illinois Vehicle Code provides that a person with a blood-alcohol content of .08 is presumed incapable of safely operating a motor vehicle (625 ILCS 5/11-501(a)(1) (West 1998)). I am convinced that, at four times the limit set forth in the Illinois Vehicle Code, C.W.'s blood-alcohol content rendered her incapable of providing the requisite care to T.W.

Indeed, C.W. admitted during the hearing that her consumption of alcohol "somewhat" impaired her ability to properly care for T.W. Based on the foregoing, I cannot say that the trial court's finding that T.W. was a neglected minor was against the manifest weight of the evidence. I would affirm the judgment of the trial court.

20000119

© 2000 VersusLaw Inc.



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