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In re Zariyah A.

Court of Appeals of Illinois, First District

December 29, 2017

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

         Appeal 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 seven-year-old Kamahrie.

         ¶ 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 her:

"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?
A. Absolutely."

          At 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 soon.

         ¶ 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 Hale.

         ¶ 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 for bathing.

         ¶ 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 date."

         ¶ 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 place:

"[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 may answer.
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 this.
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 doing that.
Q. However, was there an issue with mom participating in that service?
A. Yes. At the time, mom had Harmony Insurance, and the program, the outpatient program at Ingalls didn't accept Harmony.
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 place:

"[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 hearsay.
THE COURT: Overruled.
THE WITNESS [(MS. HALE)]: The substance abuse counselor who completed the assessment and the drug test confirmed mom- MS. ...

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