In re ZARIYAH A., DeANGELO L., JAMES L., MIKYRA P., KAMAHRIE J., COURTNEY J., and MARTE J., Minors
Ebony F., Respondent-Appellant The People of the State of Illinois In re ZARIYAH A., a Minor The People of the State of Illinois
Merrill A., Respondent-Appellant In re AMARI A., a Minor The People of the State of Illinois
Merrill A., Respondent-Appellant
from the Circuit Court of Cook County. Nos. 14 JA 1388, 14 JA
1389, 14 JA 1390, 14 JA 1391, 14 JA 1392, 14 JA 1393, 14 JA
1394, 14 JA 1410 Honorable Andrea M. Buford, Judge Presiding.
JUSTICE MIKVA delivered the judgment of the court, with
opinion. Presiding Justice Pierce and Justice Harris
concurred in the judgment and opinion.
1 At issue here are the rules of evidence as they apply to
adjudicatory hearings under the Juvenile Court Act of 1987
(705 ILCS 405/1-1 et seq. (West 2016)). These
consolidated appeals involve eight minors ranging in age from
3 to 16 years old. Following an adjudicatory hearing, the
trial court entered orders finding each of the minors was
neglected, based on a lack of care and an injurious
environment. And following dispositional hearings, the court
found that Ebony F., the biological mother of seven of the
eight minors, and Merrill A., the biological father of two of
the minors, were unable and/or unwilling to care for the
children. Ebony's seven biological children, including
her daughter with Merrill, were adjudged wards of the court
and placed under DCFS guardianship. The eighth
minor-Merrill's other child-was placed in the care and
custody of his biological mother.
2 On appeal, Ebony and Merrill challenge only the trial
court's adjudication orders, arguing that the court's
findings of neglect were against the manifest weight of the
evidence and were influenced by the court's improper
consideration of certain evidence including Ebony's
admission that she used marijuana, hearsay evidence regarding
the results of Ebony's mental health and substance abuse
evaluations, and evidence of Ebony's unwillingness to
participate in intact family services.
3 Merrill also argues that evidence of the family's
involvement with DCFS and intact family services prior to the
time that Zariyah was born and Merrill and Amari came to live
with Ebony and her other children is irrelevant and should
not have been considered in connection with the trial
court's findings that Zariyah and Amari were neglected.
4 For the reasons that follow, we reverse the trial
court's findings of neglect and remand for further
proceedings consistent with this opinion.
5 I. BACKGROUND
6 Ebony F. is the biological mother of seven of the eight
minors (Courtney J., Marte J., Kamahrie J., Mikyra P., James
L., DeAngelo L., and Zariyah A.) in these consolidated
appeals. Merrill A. is the biological father, with Ebony, of
the minor Zariyah A. Merrill is also the biological father of
the minor Amari A., with the biological mother Zivial J..
7 When the family first came to the attention of the Illinois
Department of Children and Family Services (DCFS) in 2013,
Ebony's six older children were living with her. Zariyah
was born in early 2014, and sometime that same year, Merrill
and Amari began living with Ebony and the other children.
8 In November 2014, all eight children were taken into
protective custody and the State filed petitions to
adjudicate them wards of the court, alleging that the
children were neglected, based on a lack of care and an
injurious environment, and abused, based on a substantial
risk of physical injury. The facts alleged in support of
those petitions include the following:
"On August 12, 2014 mother was involved in a domestic
dispute with a family member who resides in the same
apartment building. There is an ongoing issue of domestic
violence between mother and this family member. On November
15, 2014 the mother was arrested due to violating an order of
protection. Mother is currently incarcerated. On November 18,
2014 the family apartment was observed to be extremely cold.
The apartment had no heat and no gas *** [W]ater pipes had
burst in the building and had not been repaired.
[Zariyah's] putative father stated that he had nowhere
else to reside with this minor and minor's siblings.
Minors are often left without adequate adult supervision.
Mother and [Zariyah's] putative father admit to smoking
marijuana. On November 18, 2014 minor and minor's
siblings were observed to be dirty and unkempt."
9 In a supporting affidavit, DCFS investigator Priscilla Cash
listed the following specific reasons why the children needed
to be taken into protective custody: "Mom incarcerated;
household where children living has no heat in the home.
Father unable to make plan for his children. Children being
supervise [sic] by the 13 year old."
10 The trial court conducted an adjudicatory hearing for all
eight children on May 9, 2016. At the hearing, counsel for
Ebony presented a motion in limine, joined in by
Merrill, to bar all evidence of her involvement with intact
family services on the grounds that, under section 2-10 of
the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS
405/2-10 (West 2016)), evidence of a parent's acceptance
of services cannot be treated as an admission of neglect or
abuse. Ebony also argued that evidence of her participation,
or lack of participation, in intact services was irrelevant
at the adjudicatory stage. The trial court denied the motion.
11 The following testimony and other evidence was presented
at the adjudicatory hearing.
12 A. Initial DCFS Involvement-Summer and Fall of 2013
13 DCFS investigator Diane Hankle testified that she was
assigned to the case in June 2013, in response to two hotline
reports for inadequate supervision. Ms. Hankle visited
Ebony's home on June 28, 2013, where Ebony was living
with her six children-Ebony's youngest child, Zariyah,
had not yet been born. Ms. Hankle described the home as
"dirty." According to her, there were dog feces and
urine in one of the bedrooms, the kitchen and bathroom were
dirty, "[t]here were clothes all over the place, "
the children were sharing a single torn mattress on the
floor, and a door had been placed over a broken window. Ms.
Hankle also testified that "all of the children were
dirty, " wearing dirty clothes and looking as if they
needed a bath. DeAngelo, the youngest, was wearing dirty
underwear and "had some sort of bumps over him."
When interviewed, the children indicated that the family had
no hot water or working stove and that their mother had to
take food next door to cook. But they stated that they had
plenty to eat, bathed regularly, and could remember what they
had for dinner. According to Ms. Hankle, four-year-old James
and three-year-old DeAngelo told her that Ebony sometimes
left the children home alone, but this was contradicted by
14 Ms. Hankle spoke to Ebony, who, according to Ms. Hankle,
"said that she was stressed, and she had some
depression, " that this was affecting her "[i]n
terms of not being able to get that house cleaned up, "
but that she was not taking medication or receiving mental
health treatment at that time. Ms. Hankle said that Ebony
expressed willingness to complete the services that Ms.
Hankle mentioned to her, which included a "[s]ubstance
abuse assessment, a mental health assessment, counseling and
parenting classes." Ms. Hankle explained that the house
was not safe for the children and Ebony agreed to participate
in safety planning, which called for the children to reside
with a neighbor while Ebony cleaned up the home.
15 Ms. Hankle testified that she returned to the home a week
later, on July 5, 2013, and, based on her observations,
determined a safety plan was no longer needed. According to
"A. It looked like a completely different house. It was
clean. There was pictures on the wall. It smelled good. There
was some furniture there. The window had been replaced. The
broken windows had been replaced.
Q. And had the feces and urine been removed?
that time Ms. Hankle had also ordered beds for the children
with "Norman funds"-funds provided to families with
children who are at risk of being placed in DCFS care due to
a lack of food, shelter, clothing, or other essential items
(see Norman Services: Information on Housing Advocacy,
Cash Assistance, and Other Services, Ill. Dep't
Children & Family Svs.,
(last visited December 20, 2017))-which were due to arrive
16 Based on the condition of the home during her initial
visit, Ms. Hankle indicated allegations of environmental
neglect and risk of harm. However, she found no credible
evidence of inadequate supervision. When Ebony had to leave
the house, she left the children in the care of her neighbor.
Ms. Hankle's last involvement with Ebony was a
transitional visit with intact family services worker Latonya
17 B. Intact Family Services-Late 2013 and Early 2014
18 Ms. Hale was assigned to work with Ebony and her family in
September 2013. Ms. Hale testified that when she first met
Ebony on September 16, 2013, she told Ebony that the DCFS
investigator had recommended "certain services for her,
including a mental health assessment, parenting [classes],
and [a] substance abuse screen[ing]." According to Ms.
Hale, Ebony agreed to the mental health assessment, which she
recalled discussing with Ms. Hankle, but said she was not
aware of the other services and "wasn't going to do
those services" because "she didn't feel it was
needed." However, on September 25, 2013, Ms. Hale
reiterated her recommendations to Ebony and Ebony
"agreed to comply with the services." Although Ms.
Hale observed at that time that the cooking gas was turned
off in the home, she also noted that Ebony had a two-burner
electric stovetop that she used to cook and to heat hot water
19 Ms. Hale next met with Ebony on October 3, 2013, to review
service referrals and offer Ebony assistance with
transportation. Ebony told Ms. Hale that her biological
mother, Kimberly Holiday, whom she referred to as "Pony
Girl, " had a vendetta against her and "was always
causing problems for her and the children." The reports
that Ms. Hale prepared indicated that it was Ebony's
mother who called the hotline to report Ebony to DCFS. Ms.
Hale walked around the home during this visit and testified
that she "th[ought] the utilities were working on that
20 Ms. Hale testified that she initially made weekly visits
to the home, both announced and unannounced. She stated that
sometimes, even when a visit had been arranged in advance, no
one would answer the door. By November 6, 2013, although
Ebony told Ms. Hale that she had called one of the referrals
and not received a call back, Ms. Hale said "no services
engagement was taking place." Ms. Hale gave Ebony new
referrals and went over them again with her. At this time,
Ebony disclosed to Ms. Hale that she was pregnant and that
the baby's father "was no longer in the
picture." She also told Ms. Hale that the family's
refrigerator was not working, and Ms. Hale agreed to try to
obtain Norman funds to replace it.
21 On November 26, 2013, Ms. Hale drove Ebony to Ingalls
Behavioral Health Center for a mental health assessment. When
the State asked Ms. Hale what the outcome of that visit was,
Ebony's counsel objected and the following exchange took
"[ASSISTANT STATE'S ATTORNEY]: And what was the
outcome of that assessment?
[MS. HALE]: The clinician confirmed- MS. GIPSON [(COUNSEL FOR
EBONY)]: Objection, hearsay. THE COURT: Overruled. Go
[a]head. MS. LOZA [(ASSISTANT STATE'S ATTORNEY)]: Q. You
A. The clinician spoke with both of us, and she confirmed
that mom's diagnosis was bipolar disorder NOS.
MS. GIPSON: Continuing objection to the hearsay. Witness is
testifying as to an out-of-court person's statement for
the truth of the matter asserted. Mother would ask to strike
that portion of the answer. That is hearsay. MS. LOZA: Would
you like me to answer? THE COURT: Yes.
MS. LOZA: Judge, at this point, this is relevant for the
effect on the listener, not for the truth of the matter
asserted, why mother might have needed some services, why
this worker had acted in the way that she did after hearing
THE COURT: Overruled. You can answer.
THE WITNESS: Okay. The clinician explained to us the
diagnosis of bipolar disorder NOS. She gave us the assessment
report. She recommended mom to participate in their like
outpatient hospital type mental health program, because she
said she would be able to see a psychiatrist right away with
Q. However, was there an issue with mom participating in that
A. Yes. At the time, mom had Harmony Insurance, and the
program, the outpatient program at Ingalls didn't accept
MS. GIPSON: Judge, I could ask, for the record, for the Court
to note mother's continuing objection to the answer with
regards to the clinician's statements as hearsay.
THE COURT: Thank you."
22 Ms. Hale went on to explain that the clinician gave Ebony
a list of mental health care providers that would accept her
insurance and Ms. Hale reiterated to Ebony the importance of
following up with those referrals. That day Ms. Hale also
helped Ebony schedule an appointment for a substance abuse
assessment because Ebony reported that she was having trouble
getting through to the treatment center. Ebony told Ms. Hale
that she felt she could take care of her children and did not
need parenting classes.
23 On November 27, 2013, Ms. Hale visited the older children
at their school. She testified that they appeared to be
"safe and appropriate." She also observed the
family's home, noting that the heat was off but that
Ebony had one or more space heaters in the home "so the
areas of the home was warm." Ms. Hale recalled that
Ebony said that it was her mother downstairs who had turned
the gas off "just out of spite or something to that
effect." Ms. Hale discussed with Ebony measures she
should take to use the heaters safely. At that time, Ebony
requested bus fare so that she could see about a financial
assistance program that would help her get the heat back on
in the home. Ms. Hale testified that her organization could
not help with this directly because the utility bill was in
Ebony's mother's name. During this visit, Ms. Hale
had Ebony sign a refusal for parenting services and write why
she felt that she did not need them. Ebony agreed at that
meeting to follow up with a mental health service provider.
24 On December 9, 2013, Ms. Hale drove Ebony to Healthcare
Alternative Systems (HAS) for a substance abuse assessment.
When the State asked Ms. Hale about the outcome of that
visit, counsel for Ebony again objected, and the trial court
again overruled the objection. The following exchange took
"[ASSISTANT STATE'S ATTORNEY]: And what was the
outcome of that assessment?
MS. GIPSON [(COUNSEL FOR EBONY)]: Objection, Judge. I believe
that the answer that the witness intends to give will go into
THE COURT: Overruled.
THE WITNESS [(MS. HALE)]: The substance abuse counselor who
completed the assessment and the drug test confirmed mom- MS.