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In Re A.P. and J.P v. Lisa P

January 20, 2012

IN RE A.P. AND J.P.,
MINORS
THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
LISA P.,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Circuit Nos. 10-JA-338 and 10-JA-339 Honorable Mark E. Gilles, Judge, Presiding.

The opinion of the court was delivered by: Justice McDADE

JUSTICE McDADE delivered the judgment of the court, with opinion. Justices O'Brien and Wright concurred in the judgment and opinion.

OPINION

¶ 1 Following an adjudication hearing, the trial court found that A.P. (age 3) and J.P. (age 7) were neglected due to an environment injurious to their welfare (705 ILCS 405/2-3(1)(b) (West 2010)). At the subsequent dispositional hearing, the trial court found that the respondent, Lisa P., was a fit parent and closed the minors' cases. On appeal, the respondent argues that: (1) the trial court's finding that A.P. and J.P. were neglected minors was against the manifest weight of the evidence; and (2) the trial court erred in denying her motion in limine and admitting letters and reports from the Pediatric Resource Center (PRC). We reverse.

¶ 2 FACTS

¶ 3 On November 23, 2010, the State filed a juvenile petition alleging that A.P. was abused because, on August 17, 2010, the respondent's boyfriend inflicted physical injury upon A.P., by other than accidental means, in that he burned A.P. with hot water, causing second-degree burns. The State also alleged that both A.P. and J.P. were neglected in that their environment was injurious to their welfare because: (1) the respondent's boyfriend had burned A.P.'s face with hot water by other than accidental means; (2) the burns to A.P.'s face could not have occurred absent abuse or neglect on the part of the boyfriend; and (3) the boyfriend initially lied to police but later admitted that he had left the minors unsupervised with the bathwater running while he went outside to smoke a cigarette. In her answer to the petition, the respondent stipulated that her boyfriend initially lied but later admitted to leaving the minors unsupervised with the bathwater running.

¶ 4 Prior to the adjudication hearing, the respondent filed a motion in limine to exclude from evidence records from the PRC. The respondent argued that the records were not made in the regular course of business and were being introduced as a substitute for expert medical testimony. The respondent contended that the records were those of a consulting physician prepared in anticipation of litigation, which contained opinions or conclusions as to the source of injury to A.P. The trial court denied the motion in limine and admitted the PRC records into evidence.

¶ 5 According to the PRC records, the Department of Children and Family Services' (DCFS) investigatory notes indicated that: (1) the respondent had stated that she was on her way home from a doctor's appointment when her boyfriend called and told her that A.P. had burned his face in the bathtub; (2) the boyfriend told the respondent that the incident occurred while he was looking at himself in the mirror; (3) the respondent arrived 10 minutes later and took A.P. to the hospital; (4) DCFS investigators were unable to confirm the temperature of the water in the boyfriend's home; (5) the respondent's boyfriend was caring for his own 5- and 10-year-old children, in addition to A.P. and J.P., at the time of the incident; (6) the mother of the boyfriend's 5-year-old child indicated that he was a good parent; (7) the boyfriend initially reported being in the bathroom at the time of the incident but later reported being in the den at the time of the incident, and then changed his story again to indicate that he was in front of the house when the incident occurred; (8) the boyfriend initially reported that the other children were in the basement at the time of the incident but later indicated that two of the other minors were in the den watching cartoons when A.P. was injured; (9) the boyfriend lied about the incident because he did not want the respondent to be mad at him; (10) when the incident occurred, the boyfriend heard A.P. scream, so he ran to the bathroom and found A.P. standing by the bathtub's faucet; (11) the respondent had previously spoken to the boyfriend about the water in her home getting too hot when they washed their hands; (12) the boyfriend's 10-year-old child reported that he was in the basement and the other children were in the den when the incident happened; and (13) after the incident, the 10-year-old child observed the respondent's boyfriend applying ice to A.P.'s face. A time-temperature exposure chart in the PRC records indicated that water at a temperature of 140 degrees or higher would scald a child's skin in one second or less.

¶ 6 The PRC records contained a report by Dr. Channing Petrak, in which she opined that A.P.'s burns were "most consistent with inflicted burns due to child physical abuse." Petrak based her opinion upon the fact that A.P. had no burns on his hands or arms, which would have been expected because "children put their hands out to catch themselves when they fall." Petrak noted that based on the measurements of the bathtub and A.P.'s height, "it is not probable that [A.P.] would have been able to fall and catch himself in a way that only his left side of his face, ear and back of his neck were burned." Petrak further noted that if A.P. had tried to reach for toys "the faucet would have been on his right side, not his left," and if A.P. had his head turned "to get only the left side of his face under the faucet, then it would be expected that the runoff of the water would have burned his left shoulder" and A.P. did not have burns on his left shoulder.

¶ 7 The State also entered A.P.'s hospital records into evidence. A.P.'s emergency room (ER) records for August 17, 2010, indicated that the respondent reported to ER staff that her boyfriend was running bathwater when A.P. ran into the bathroom to get a toy and slipped and fell head first into the bathtub. The ER records indicated that A.P. had first-and-second-degree scald burns to 8% of the left side of his head. The ER records noted that A.P.'s maternal grandmother stated that A.P. had previous visits to the ER for falls and cuts to his face, with the respondent's boyfriend having been involved.

¶ 8 A.P.'s medical records, from July 28, 2009, and January 2, 2010, indicated that A.P. incurred a laceration to his lower lip after he slipped from the side of a bed and struck his lip on the bedrail, and he incurred a laceration to the left side of his forehead after he ran into a desk drawer at the respondent's gym. There was no indication that the respondent's boyfriend was involved in either of the previous incidents.

¶ 9 The respondent testified that on August 17, 2010, her boyfriend was baby-sitting the minors while she went to a doctor's appointment. After her appointment, the respondent was returning to her boyfriend's home when he called and said that A.P. had burned his face in the bathtub. The respondent arrived at her boyfriend's home 10 minutes later and observed that A.P. had burns on the left half of his face that were "like a sunburn" and looked "superficial" on the "outside of his skin." The respondent immediately transported A.P. to the ER.

¶ 10 The respondent testified that there had never been any incidents of abuse involving her boyfriend and the minors. She testified that A.P. had been taken to the hospital on two previous occasions. She described the first incident as occurring when A.P. was one year old, when he slipped off a bedrail and split his lip open at the home of the minors' maternal grandmother. She described the second incident as occurring when A.P. was almost two years old, when he fell into a desk drawer and split his forehead open at her gym.

ΒΆ 11 At the conclusion of the adjudication hearing, the trial court stated that it could not find by a preponderance of the evidence that A.P.'s injuries were caused by abuse. The trial court found that because the respondent's boyfriend lied about what had occurred, it was "more likely than not [that] he was neglectful in watching [A.P.]" and "he was trying to defend himself with regard to his neglectful actions." The trial court found that the minors were neglected due to an ...


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