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

November 29, 2012

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



The opinion of the court was delivered by: Justice Theis

JUSTICE THEIS delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Burke concurred in the judgment and opinion.

OPINION

¶ 1 This appeal arises from a judgment of the circuit court of Peoria County that found A.P. and J.P. to be neglected minors under section 2-3(1)(b) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3(1)(b) (West 2010)) due to an environment injurious to their welfare. At the subsequent dispositional hearing, the circuit court found that respondent-mother Lisa P. was a fit parent and closed the minors' cases. Respondent appealed, challenging the finding of neglect and the circuit court's admission of records from the Pediatric Resource Center under section 2-18(4)(a) of the Act (705 ILCS 405/2-18(4)(a) (West 2010)). The appellate court reversed, holding that the circuit court erred in admitting the records and adjudicating the minors neglected. 2012 IL App (3d) 110191. Before this court, the State challenges the appellate court's determination on both issues. For the reasons that follow, we affirm the judgment of the appellate court reversing the trial court's determination that the minors' were neglected.

¶ 2 BACKGROUND

¶ 3 Respondent is the mother of A.P., born on January 19, 2008, and J.P., born on September 24, 2003. A.P. and J.P. live with respondent, who is divorced from the minors' father, Jeremy P. On August 17, 2010, respondent's boyfriend, Chad McLee, was at his home looking after A.P. and J.P., and two of his own children, while respondent went to a doctor's appointment. Respondent and the minors did not live with McLee. When respondent returned following the appointment, she observed that A.P. had been burned on his face. She immediately took him to the emergency room at OSF Saint Francis Medical Center (OSF) in Peoria, where A.P. was treated for burns to his head.

¶ 4 On November 23, 2010, the State filed a juvenile petition alleging that A.P. was abused because McLee inflicted physical injury upon him, by other than accidental means, in that he burned his face with hot water, causing second-degree burns. The State also alleged that A.P. was neglected in that his environment was injurious to his welfare because: (1) McLee 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 McLee; and (3) McLee had lied to police about the incident but later told them that he had left the minors unsupervised with the bathwater running while he went outside. Based upon the incident involving A.P., the State filed a separate petition alleging that J.P. was neglected by reason of an environment injurious to his welfare. The petitions were consolidated for hearing. In respondent's answer to the petitions, she stipulated that the State would call witnesses that would support its allegation that McLee had lied to the police about A.P.'s scalding, and that he finally told them that he was running bathwater and left the children alone unsupervised while he went outside to smoke a cigarette.

¶ 5 Prior to the adjudicatory hearing, respondent filed a motion in limine seeking to exclude from evidence the introduction of letters or reports from the Pediatric Resource Center (PRC) containing any opinion, impression, or conclusion concerning the proximate cause of the injury to A.P. because the records did not meet the requirements for admission as a business record under section 2-18(4)(a) of the Act. She objected, in pertinent part, because the records were those of a consulting physician that were not made in the regular course of business but, rather, were prepared in anticipation of litigation, and contained opinions or conclusions as to the source of A.P.'s injury. She further objected to Dr. Petrak's letter and report because it failed to establish that her conclusions were within a reasonable degree of medical certainty. She also sought to exclude any documents prepared by the Department of Children and Family Services (DCFS) as part of its investigation into A.P.'s burns that were not certified under section 2-18(4)(a) of the Act. The trial court denied respondent's motion in limine and admitted the records into evidence.

¶ 6 The records indicated that A.P. was examined by Dr. Channing

Petrak at the PRC clinic on August 19, 2010. Dr. Petrak subsequently issued a report on November 24, 2010, in which she opined that A.P.'s burns were "most consistent with inflicted burns due to child physical abuse." She based her opinion on 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. Based upon 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 [the] left side of his face, ear and back of his neck were burned." Dr. Petrak also wrote that she reviewed notes from DCFS of its interviews with respondent, McLee, and the three other children who were in the house when A.P. was burned. Dr. Petrak wrote that the DCFS notes indicated that McLee's explanation as to what happened was not consistent. McLee variously claimed that he was looking in the mirror when A.P. came into the bathroom and slipped on something; he was in the den area having a cigarette with the door open rather than in the bathroom; and he was outside and did not see what happened.

¶ 7 At the adjudication hearing, the State entered into evidence, without objection, A.P.'s hospital records from OSF. The records indicated that A.P. had first- and second-degree scald burns on the left side of his head. The records also noted that respondent reported to the hospital staff that her boyfriend was watching A.P. He had already given a bath to two other children in the house when A.P. ran into the bathroom to get a toy, slipped on the floor, and fell head first into the bathtub. OSF contacted the Department of Children and Family Services (DCFS) concerning A.P.'s burns and transferred him to the burn unit at Memorial Medical Center in Springfield. The hospital records indicated that A.P.'s grandmother stated that the minor had previous emergency room visits for falls and cuts to the face and that an unnamed boyfriend of respondent was involved in two of the episodes. The medical records indicated that A.P. had previously incurred a laceration to his lower lip after he fell off a chair and struck his lip against a wooden bedframe in July 2009. The records further indicated that he incurred a laceration to the left side of his forehead after he ran into a desk drawer at respondent's gym in January 2010. There was no indication from the medical records that McLee was involved in either of these incidents.

¶ 8 Respondent was the only witness to testify at the adjudication hearing. She testified that on August 17, 2010, she left A.P. and J.P. with McLee at his home while she went to a doctor's appointment. Respondent and McLee had separate living arrangements. McLee's 10-year-old son was visiting at the time from California and was present at the home. After her appointment, respondent called McLee when she was about 10 minutes away from his house to let him know that she was returning. They planned to leave for a barbecue when she got back and he told her that he was going to take a shower. When she arrived at the home, she observed blistering burns like a sunburn on half of A.P.'s face. She grabbed A.P. and immediately took him to the emergency room at OSF.

¶ 9 Respondent further testified that there had not been any incidents involving abuse of the children by McLee. She testified that A.P. had been taken to the hospital on two previous occasions. The first incident occurred when A.P. was approximately one year old when she was living at her mother's house and the minor slipped off the bed and split his lip open requiring stitches. The second incident occurred when A.P. was two years old and was being watched in the day-care center at respondent's gym. A.P. tripped and fell on a desk drawer and split his forehead open.

ΒΆ 10 Following the adjudication hearing, the trial court concluded that while it could not find by a preponderance of the evidence that A.P.'s injuries were caused by abuse, the minors had been neglected by reason of an injurious environment. In ...


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