People v. Arthur H.

JUSTICE GARMAN, dissenting:

Both the appellate court and the majority would reverse the circuit court’s finding of neglect. Because I conclude that the finding that Arthur H., Jr., was neglected within the meaning of section 2 — 3(l)(b) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2— 3(1) (b) (West 2000)) was not against the manifest weight of the evidence, I respectfully dissent.

At the temporary shelter care hearing with respect to Earl H. and three of his siblings, the circuit court learned that Lorraine had a fifth child, Arthur Jr., who was believed to be staying with his father in Milwaukee because his mother lacked transportation that would have enabled her to “ ‘get him back.’ ” 212 Ill. 2d at 445. The State indicated a desire to locate Arthur Jr. and to restrict Lorraine’s contact with him. 212 Ill. 2d at 446. The suggestion was made by the DCFS investigator that the child’s father might be seeking custody in a Wisconsin court (212 Ill. 2d at 445), but there was no evidence that such a proceeding had been initiated or that Lorraine’s custodial rights were in any way diminished. Indeed, because it was not known how long this arrangement had been in effect, it was not altogether clear whether a Wisconsin court would have had jurisdiction to determine custody of the child. See 750 ILCS 35/1 et seq. (West 2000) (Uniform Child Custody Jurisdiction Act — subsequently repealed, effective January 1, 2004, and replaced by the Uniform Child-Custody Jurisdiction and Enforcement Act, 750 ILCS 36/101 et seq. (West Supp. 2003)); see also Wis. Stat. Ann. § 822.01 et seq. (West Supp. 2000).

Regardless of the wording of the juvenile custody warrant or the means used to locate Arthur Jr. and to obtain jurisdiction over him, the circuit court was well within its discretion to direct the State to locate the child and to file a neglect petition. It was entirely possible, given Lorraine’s statement that she did not know where the child was or how to contact him, that Arthur Jr. was in an entirely unsuitable environment or was a victim of abuse.

Thus, it is not disputed that Arthur Jr. was properly the subject of an adjudicatory hearing pursuant to section 2 — 21(1) of the Act (705 ILCS 405/2 — 21(1) (West 2000)). I also agree with the majority that the appropriate focus of the neglect inquiry at such a hearing is the status of the child, not the conduct of either parent. 212 111. 2d at 464-67. However, the majority then improperly shifts its focus away from the circumstances of the child and onto the individual parents. The majority does what it has identified as error on the part of the appellate court — it concludes that Arthur Jr. should not have been adjudicated neglected because the only evidence of neglectful conduct pertained to his mother. In effect, the majority concludes that Arthur Jr. was not neglected because Arthur Sr. did not neglect him.

It is at this point in the analysis that, for several reasons, I part company with the majority. First, focusing on the child, we know that he is the nonmarital child of Lorraine. We know that Lorraine and Arthur Sr. agree that he is the child’s biological father. We are told that Arthur Sr. signed an acknowledgment of paternity in Wisconsin, but the circumstances surrounding the execution of that document are unknown. We do not know if Lorraine signed it, so the legal effect, if any, of that document is not established. See, e.g., 750 ILCS 45/5(a)(3), (a)(4) (West 2000) (requiring that an acknowledgment of paternity by a man purporting to be the father of a child be signed by both the man and the child’s mother in order to create a presumption of paternity); see also Wis. Stat. Ann. § 891.405 (West 1994) (creating a presumption of paternity if both the mother and the man claiming paternity have complied with the statute governing acknowledgment of paternity and no other man is presumed to be the father). Thus, no presumption of paternity has arisen and, legally, the relationship between Arthur Sr. and Arthur Jr. is that of putative father and nonmarital child.

By the date of the adjudicatory hearing, there had been no adjudication of paternity, no award of custody, no support obligation established, and no fixing of visitation rights with regard to Arthur Jr. As a result, custody of this nonmarital child was presumed to be with his mother. See, e.g., 720 ILCS 5/10 — 5(a)(3) (West 2000) (for purposes of statute on child abduction, it is “presumed that, when the parties have never been married to each other, the mother has legal custody of the child unless a valid court order states otherwise”); see also 750 ILCS 45/14(a)(2) (West 2000) (even where there has been a judgment of paternity, in the absence of an order granting custody to the father or unless he has had physical custody for at least six months prior to the date that the mother seeks to enforce her custodial rights, custody shall be presumed to be with the mother). Arthur Sr. had mere physical custody of the child, not legal custody, and the duration of his physical custody was a matter of dispute. Lorraine could have insisted on the child’s return at any time. Indeed, Arthur Sr. admitted that he would have returned the child to Lorraine if she had asked. In sum, Arthur Jr. had one legal parent, one putative parent, and four siblings or half-siblings who were neglected while residing with the mother they shared.

The State’s theory with regard to the alleged neglect of Arthur Jr. is sometimes referred to as “anticipatory neglect.” This court has not used the term before, but there is ample case law from the appellate court utilizing and defining the term. See, e.g., In re S.R., 349 Ill. App. 3d 1017 (2004); In re J.R., 331 Ill. App. 3d 220 (2002); In re Edricka C., 276 Ill. App. 3d 18, 28 (1995). The theory arises from section 2 — 18(3) of the Act, which states that proof of the abuse or neglect of one minor “shall be admissible evidence on the issue of the abuse [or] neglect *** of any other minor for whom the respondent is responsible.” 705 ILCS 405/2 — 18(3) (West 2000). Thus, if Lorraine was “responsible” for Arthur Jr., her neglect of her other four children may be used as evidence that she is likely to neglect him in the future. As the sole adult with custodial rights to Arthur Jr., she was surely responsible for him even though she voluntarily relinquished her responsibility, for a time, to Arthur Sr.

My second point of disagreement with the majority is its resolution of the question of whether Lorraine was likely to neglect Arthur Jr. in the future. The majority overlooks the significant similarity between Arthur Sr. and the godmother in In re B.C., 262 Ill. App. 3d 906 (1994), to whom the respondent mother had temporarily relinquished physical custody of B.C. 212 Ill. 2d at 473. Neither Arthur Sr. nor the godmother had any custodial rights to the children. Both Lorraine and B.C.’s mother could have removed their children at any time. The majority opines that “unlike a godmother, a father has the right to say ‘no’ to the mother if she wishes to remove the child from his care.” 212 Ill. 2d at 473. The only authority offered for this blanket statement of paternal veto power over the rights of a custodial mother is the fundamental constitutional right of a parent to the care, custody, and control of his children. However, while a father’s interest in maintaining a relationship with his child is a fundamental liberty interest, his rights arise from the state and federal constitutions and are implicated only if the state attempts to interfere with them, not if the mother of his nonmarital child seeks to enforce her custodial rights. In re Adoption of K.L.P., 198 Ill. 2d 448, 466-67 (2002).

Arthur Sr. certainly had standing to seek an adjudication of paternity and custody of his son. At the time of the adjudicatory hearing, however, he had not done so. His own testimony reveals that if Lorraine had demanded the child’s return, he intended to abide by their informal agreement and to return the child to her. I therefore conclude that this case is quite similar to B.C. and that the same result should apply — the child’s temporary residence with someone other than his custodial parent should not preclude a finding of neglect under a theory of anticipatory neglect.

The case law is clear that when the State seeks an adjudication of neglect of one child based on evidence of neglect of the child’s siblings, the court should fully consider the child’s current care and condition. See Edricka C., 276 Ill. App. 3d at 28 . In the present case, Arthur Jr. was apparently well cared for in Milwaukee before these proceedings began, just as B.C. was apparently well cared for by her godmother. His condition, however, was that he was a nonmarital child in the physical, but not legal, custody of a man who was his biological, but not legal, father. His siblings and half-siblings were being neglected by his only legal parent and he was at risk of the same neglect if his mother demanded his return.

The majority focuses on the fact that Lorraine lacked transportation and was therefore unlikely to be able to travel 100 miles “across state lines” to Milwaukee to retrieve him. 212 Ill. 2d at 473. I cannot imagine that it would have been difficult for Lorraine to prevail upon a friend or relative to give her a ride to Milwaukee for something as important as picking up her son. I can, however, imagine the scene if, as the majority would have it, the petition had been dismissed and she had gone to Wisconsin to demand the child’s return. Arthur Sr. would either have given up the child, which all agree would have exposed him to neglect, or else he might have refused. The police might have been called. They would have learned that Lorraine and Arthur Sr. had never been married and that Arthur Sr. did not have a court order giving him custody of the child. They would also have learned that a neglect petition had been dismissed in Illinois and that, as a result, Lorraine’s custodial rights were still in full effect. It is likely that the child would have been sent back to Illinois with his mother.

My third concern is that the majority uses imprecise language and undefined terms in a manner that will cause confusion as our circuit and appellate courts attempt to discern the precedential effect of this case. For example, the majority states that the “uncontradicted evidence” shows that Arthur Sr.’s home was the child’s “primary residence.” 212 Ill. 2d at 472. The evidence, however, was in dispute. Lorraine and Arthur Sr. gave differing accounts of the amount of time the child spent with each parent. Because Arthur Sr. opposed the finding of neglect, he and his mother, who supported his version of events, may have been inclined to exaggerate the amount of time the child was in Milwaukee. Lorraine may have minimized the amount of time the child spent at his father’s, although her motive to do so is not clear since she obviously was not going to be able to have Arthur Jr. returned to her, no matter whom the court believed. This is not uncontradicted evidence of a child’s primary residence. In the end, the circuit court was not convinced that either parent was presenting an unbiased view. See In re D.F., 201 Ill. 2d 476, 498-99 (2002) (under a manifest weight of the evidence standard, a reviewing court gives deference to the trial court as the finder of fact because it is in a better position to observe the conduct and demeanor of parties and witnesses and to assess their credibility). The court reasonably concluded that the actual amount of time the child spent with his father was somewhat more than Lorraine described and somewhat less than Arthur Sr. described.

Even leaving aside the fact that the evidence was in dispute, the term “primary residence” is not found anywhere in the Act or in the case law applying the Act. Indeed, if primary residence were a determinative factor in neglect cases, any parent could avoid a neglect finding by placing his or her child in the home of a grandparent or other caregiver long enough for that home to become the child’s “primary residence.”

Similarly, the majority makes much of the “legal relationship” between Arthur Jr. and Arthur Sr. and the fact that Arthur Sr. was the “primary caretaker” of his son. 212 Ill. 2d at 473. As I noted above, the legal relationship between Arthur Sr. and Arthur Jr. is not established. The relationship appears to be that of putative father and nonmarital child. If and when Arthur Sr. successfully asserts his parental rights in a parentage action or effectively acknowledges his paternity (see People ex rel. Department of Public Aid v. Smith, 212 Ill. 2d 389 (2004)), he will be the child’s legal father. Until then, there is no legal relationship between two, just as there is no legal relationship between Arthur Sr. and Lorraine’s daughter, Jaquane, whom the parties believe is his daughter. In any event, even if the acknowledgment of paternity signed by Arthur Sr. in Wisconsin was effective to create a parent-child relationship, it was not effective to confer to legal custody upon Arthur Sr.

“Primary caretaker” is a description often used in the context of child custody disputes between divorcing parents to argue for the award of custody to the parent who has provided a greater share of the day-to-day parenting of the child. See, e.g., In re Marriage of Wycoff, 266 Ill. App. 3d 408 (1994). If, after an adjudication or effective acknowledgment of paternity, a dispute were to arise between Arthur Sr. and Lorraine over the custody of their son, his status as primary caretaker, if proven, would weigh heavily in his favor. In an adjudicatory proceeding under the Act, however, saying that a putative father has been the primary caretaker of a child is just another way of saying what the majority has criticized the appellate court for saying — that Arthur Jr. was not neglected because only one of his parents was neglectful.

Finally, the majority acknowledges that the standard of review in this case is whether the circuit court’s finding of neglect was against the manifest weight of the evidence, but then engages in its own assessment of the credibility of the witnesses and its own weighing of the evidence. In effect, the majority engages in de novo review and concludes that it would have reached a different decision on the question of whether Arthur Jr. was neglected. This is something we are not permitted to do, even if the case is a hard one and even if the respondent parent is a very sympathetic character. A reviewing court must not reverse a circuit court’s determination on the question of neglect unless the finding is “against the manifest weight of the evidence if the facts clearly demonstrate that the court should have reached the opposite result.” In re N.B., 191 Ill. 2d 338 , 346 (2000).

In the present case, the circuit court certainly could have concluded that Arthur Jr. was not neglected as alleged in any of the three counts in the petition. However, given Arthur Jr.’s status as a nonmarital child whose mother had full custodial rights to him, the substantial risk that she would successfully assert those rights, and the evidence of neglect of his siblings, I conclude that the circuit court’s findings were not against the manifest weight of the evidence.

In In re S.S., 313 Ill. App. 3d 121 (2000), the State sought an adjudication of neglect of a child born 20 months after the death of his infant sister. The theory was anticipatory neglect. After the older child died of shaken baby syndrome, the father was charged with first degree murder and involuntary manslaughter. He was acquitted. The parents of the child had never been married and they were no longer together at the time of the adjudicatory hearing. The circuit court found the child neglected and made him a ward of the court. Both parents appealed. Like the appellate court in the present case, the appellate court in S.S. considered the parents separately and concluded that the evidence was sufficient to establish the father’s neglect, but not the mother’s.

As a result of the majority opinion in the present case, we now know that the proper inquiry at the adjudicatory hearing is whether the child is abused or neglected, not which parent is responsible for the abuse or neglect. Although the appellate court in S.S. engaged in unnecessary consideration of the degree of responsibility of each parent at the adjudicatory stage, it did reach the correct result: “Because the evidence of past sibling abuse by [the father] was sufficient to establish a finding of neglect, the trial court properly determined that it was in the best interest of S.S. that he be made a ward of the court.” S.S., 313 Ill. App. 3d at 132 . The court then went on to determine that it was error for the circuit court at the dispositional stage to remove custody of S.S. from his mother, in whose custody he would not have been at risk, and to place guardianship with DCFS.

In my opinion, this would have been the proper procedure in the present case. Arthur Jr. was properly found to be neglected based on the fact that siblings were neglected in the home of his mother, whose custodial rights to him were not limited in any way. If the evidence at the dispositional stage revealed that he had an “otherwise fit parent” who was ready, willing, and able to assume custody, the circuit court should have “exercise[d] extreme prudence before placing [him] under the guardianship of DCFS.” S.S., 313 Ill. App. 3d at 132-33 . At this point, the circuit court might well have determined that the best interests of Arthur Jr. would have been served by placing him with his father. 705 ILCS 405/2 — 23(1) (West 2000). Lorraine might have been granted supervised visitation, or a protective order requiring her to stay away from Arthur Jr. might have been warranted. 705 ILCS 405/2 — 25(l)(a), (l)(b) (West 2000).

The majority’s resolution, reversing the finding of neglect and dismissing the State’s petition, returns father and son to the status quo ante. There is still no finding of paternity and no award of custody. Arthur Sr. will have physical possession of his son, but not legal custody.

If Lorraine’s parental rights to Arthur Jr. have already been terminated, a question not answered in the briefs, Arthur Jr. may be left without a legal parent. On the other hand, if her rights have not been terminated, the majority has undermined the ability of the State to seek to terminate her parental rights because if a child is not abused, neglected, or dependent then he cannot be the subject of a petition to terminate parental rights. 705 ILCS 405/2 — 12(2) (West 2000) (a petition in respect of a minor under the Act “shall allege that the minor is abused, neglected, or dependent, with citations to the appropriate provisions of this Act, and set forth *** facts sufficient to bring the minor under Section 2 — 3 or 2 — 4” of the Act). See also In re J.P.S., 198 Ill. App. 3d 633 (1990) (holding that the State’s petition to terminate parental rights did not state a cause of action because the child had not been adjudicated a neglected or dependent minor as required by the Act).

It is my sincere hope that Arthur Sr. will act promptly to clarify the status of his son and that their family will quickly overcome the effects of this long separation.

JUSTICE THOMAS joins in this dissent.