No. 1-22-1109 Second Division December 20, 2022 ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________

In re J.R., ) Appeal from the ) Circuit Court of Minor, ) Cook County. ) (The People of the State of Illinois, ) ) No. 20 JA 783 Petitioner-Appellee, ) ) v. ) ) Honorable L.O., ) John Huff and ) Honorable Tiesha Smith Respondent-Appellant). ) Judges, presiding. ____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the judgment.

OPINION

¶1 Respondent, L.O., is the biological mother of the named minor, J.R. Following adjudication

and dispositional hearings, the trial court found J.R. to be abused and neglected pursuant to the

Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3 (West 2018)), determined that L.O. was

unable to care for J.R., and placed J.R. in the custody of his father. L.O. appeals from the

adjudication and dispositional orders, solely arguing that the trial court’s finding of abuse based No. 1-22-1109

on substantial risk of physical injury was against the manifest weight of the evidence. For the

reasons that follow, we affirm.

¶2 I. BACKGROUND

¶3 L.O. is the biological mother of J.R., born May 15, 2013. During the proceedings, the father

was identified as Josef R.

¶4 On May 20, 2020, the State filed a petition for adjudication of wardship for J.R. (then age

seven), alleging that he was neglected due to an injurious environment (id. § 2-3(1)(b)) and abused

due to a substantial risk of physical injury (id. § 2-3(2)(ii)). In support of both allegations, the

petition set forth the following:

“Mother has two prior indicated reports for risk of harm. Mother and legal father have a

history of domestic violence. Mother and current paramour also have a history of domestic

violence. Mother has previously been diagnosed with major depressive disorder, PTSD and

alcohol use disorder. Mother previously received intact family services. On or about May

1, 2020, mother and current paramour were involved in a domestic violence incident

wherein paramour hit, punched, slapped and choked her. Mother initially denied the recent

domestic violence incident with her current paramour and stated she is not receiving any

mental health treatment or medication. On or about May 3, 2020, mother was involved, as

driver, in a car accident and at the time reportedly smelled of alcohol and had open

containers of alcohol in the car. After the accident mother was throwing items in the

relative’s home while the minor was present.”

¶5 The petition and motion for temporary custody were accompanied by an affidavit from

Serina Mathena, a Department of Children and Family Services (DCFS) investigator. She averred

that L.O.’s “combination of issues related to domestic violence, chronic mental health conditions,

-2- No. 1-22-1109

and substance abuse” as well as “a lack of innate parenting capacity” created an urgent need to

take protective custody of J.R.

¶6 The court granted the State’s motion for temporary custody, finding that it was necessary

to remove J.R. from L.O.’s custody.

¶7 On October 18, 2021, and January 6, 2022, an adjudicatory hearing was held before the

trial court. The following evidence was presented.

¶8 The State entered into evidence several exhibits, including L.O.’s medical records from

Gottlieb Memorial Hospital, PCC Wellness, and Loyola Medicine, and L.O.’s 2016 conviction for

child endangerment. Some of the medical records were admitted over L.O.’s objection as to

relevance, particularly for those dating between 2009 and 2013. The court stated that it would give

the records the appropriate weight.

¶9 The medical records show a history of psychiatric hospitalizations, at least once for suicidal

ideation, and repeated diagnoses of bipolar disorder, depression, anxiety, and posttraumatic stress

disorder (PTSD). One of her hospitalizations, occurring in 2017, was the result of a text message

she sent to her boyfriend threatening to kill herself. The records indicate that the police found her

walking outside with J.R. at night, barefoot and wearing nothing but a bathrobe. Documents from

L.O.’s initial behavioral health appointment in 2016 show that L.O. had a traumatic past that

included domestic violence inflicted by Josef, homelessness, substance abuse, sexual assault, and

prostitution. L.O. had also reported at that time suicidal ideation but no specific suicidal intent or

plan.

¶ 10 The records related to her 2016 child endangerment conviction show that she was charged

with child endangerment and domestic battery and she was sentenced on the child endangerment

count with six months of supervision and parenting and anger management classes. Although the

-3- No. 1-22-1109

conviction records do not describe the offense that took place, L.O.’s integrated assessment in the

common law record provides that on May 11, 2016, it was reported that L.O. assaulted her mother

and J.R. was being held by her mother at the time.

¶ 11 Gabrielle, J.R.’s maternal aunt, testified that L.O. and J.R. came to live with her in 2017

and L.O. moved out in May 2020. She stated that L.O. and J.R. previously lived with Anna,

Gabrielle and L.O.’s mother, and she understood that they moved out because there were

disagreements and aggression among the household members. While J.R. was living with

Gabrielle, he would go to daycare during the day when Gabrielle and her husband were at work

and her husband would pick him up from daycare. When they first moved in with Gabrielle, DCFS

did not allow L.O. to be alone with J.R. At some point, that restriction was lifted and she was able

to pick him up when he began attending school. On the weekends, J.R. would stay with Anna.

Gabrielle knew that L.O. was in a relationship with Edwin but did not know if that is where L.O.

stayed on the weekends.

¶ 12 In regards to the car accident, Gabrielle testified that she and J.R. were asleep in her

bedroom when L.O. was dropped off at Gabrielle’s house around 2 a.m. When L.O. came into the

bedroom to pick up J.R., Gabrielle smelled alcohol on L.O., and she testified that the scent was

strong enough to smell it from a couple feet away. She told L.O. that she should leave J.R. where

he was until she was actually ready to go to sleep so as not to disturb him. L.O. became upset, and

Gabrielle reluctantly let L.O. take J.R. into her bedroom. Gabrielle then heard L.O. making a lot

of noise in her bedroom. She testified that it sounded like L.O. was opening and shutting drawers

roughly and throwing things. She also heard L.O. yelling and swearing at someone on the phone,

which she later learned was their mother. L.O. was telling her mother to come back and pick her

up. Gabrielle went to get J.R. from the bedroom at this point. When she entered the room, she saw

-4- No. 1-22-1109

the lights were on and J.R. was awake and looked scared. An argument ensued between Gabrielle

and L.O., and Gabrielle ultimately told her to leave. L.O. left the house for some time but

eventually came back and went to sleep.

¶ 13 Later that day, after L.O.’s car had been retrieved and fixed, Gabrielle observed L.O.

packing her belongings. Gabrielle was not concerned about L.O. leaving the home but became

involved when L.O. began packing J.R.’s belongings as well and stated that she was taking J.R. to

her apartment. Gabrielle responded that she was not going to let L.O. take him away from her

home to a place that she did not know anything about. Gabrielle took J.R. to their mother’s house

because she was worried L.O. was going to disappear with him.

¶ 14 Gabrielle testified that during this time period she was concerned that L.O. would leave

J.R. unattended and not provide appropriate care for him. She also testified that she was not aware

of the apartment that L.O. rented and she believed L.O. did not have any place to live. Eventually,

L.O. did move out of Gabrielle’s home but Gabrielle did not know where she went.

¶ 15 On cross-examination, Gabrielle testified that when L.O. moved into her home, she was

concerned about L.O.’s alcohol use and made a point to keep an eye for that behavior. Gabrielle

did not observe her drinking during the week when J.R. was at the home. Gabrielle believed that

L.O. was intoxicated on the night of the car accident because of the smell and because L.O. was

acting irrational and angry.

¶ 16 Mathena testified that, in May 2020, she was assigned to investigate a report regarding J.R.

alleging substantial risk of physical injury and injurious environment. During her investigation,

she found two prior indicated reports from May 2016 and November 2017. Both allegations were

for substantial risk of harm. She spoke on the phone with L.O. and informed her that an allegation

had been made regarding a car accident where L.O. had been intoxicated and that she was throwing

-5- No. 1-22-1109

things around the bedroom while J.R. was present. L.O. denied everything. She also said that if

those things happened, J.R. was not present. L.O. relayed her suspicion that her brother or another

family member had made the report to DCFS.

¶ 17 That same day Mathena visited Anna’s residence where she listened in on a phone call

between Gabrielle, Anna, and L.O. During the call, L.O., using profanity, instructed her family to

stop making reports to DCFS. During this visit, Mathena also spoke with J.R. From the night of

the car accident, J.R. recalled his mother moving things around the room, including tossing some

things, and using profanity. He reported that the entire situation was “hurtful” and that the process

had been “hurting.” He described how he felt as a “blue screen *** like what happens on the old

computer monitors when it shuts down.”

¶ 18 On May 7, 2020, Mathena visited L.O. at her home. Mathena testified that L.O. appeared

disheveled and had what appeared to be superficial self-harm cuts on her left forearm. She reported

that Edwin had moved out a couple months prior. L.O. denied any domestic violence between

herself and Edwin. Despite Mathena informing her that she was aware of an incident, L.O.

continued to deny any violence but stated that she did have an incident with the neighbors. She

stated that she was not a victim in that incident. Mathena then asked her about the car accident,

which L.O. initially denied having occurred. L.O. stated that her tires blew out on the highway,

and she had contacted her mother to pick her up from a hotel parking lot that she had pulled into.

She also reported to Mathena that there was some conflict later that night when she tried to remove

J.R. from Gabrielle’s bedroom. She stated that she was in process of moving so the room was

cluttered and items were packed away. L.O. denied that she was drunk that night and later stated

that, even if she was intoxicated and blew a tire, DCFS should not be involved because J.R. was

not present.

-6- No. 1-22-1109

¶ 19 Mathena spoke with L.O. on the phone a couple days later to discuss the required mental

health assessment. L.O. stated that the assessment had been completed at the emergency room and

she had received a recommendation for outpatient counseling. L.O. stated that she did not believe

she needed counseling.

¶ 20 Mathena testified that, after conferring with her supervisor, the allegation was found to be

indicated.

¶ 21 On cross-examination, Mathena testified that, during her investigation, she was unable to

confirm whether L.O. was actively involved in mental health treatment. She also testified that J.R.

appeared adequately nourished and she did not observe any signs of physical abuse or neglect.

¶ 22 Chicago police officer Rebecca Warner testified that, on May 1, 2020, around 10:50 p.m.,

she and her partner responded to a report of a battery in progress at L.O. and Edwin’s apartment.

Upon arrival, the neighbors informed her that they had called the police because there was a

domestic disturbance in the apartment above them. They informed Officer Warner that Edwin

followed L.O. outside and continued to strike her about the face and body. Edwin was detained.

Officer Warner spoke with L.O. and learned that Edwin had been drinking alcohol, became

aggressive towards L.O., and began striking her on her face and body. Edwin was slapping,

kicking, and punching her. He also grabbed her by the throat and choked her. She then ran outside

the apartment towards her car, and he followed her and continued to hit her until the neighbors

intervened. L.O. refused medical attention and refused to charge Edwin. Officer Warner gave her

information on domestic violence and orders of protection. Officer Warner testified that L.O. was

“shook up” and “nervous.” On cross-examination, Officer Warner testified that she did not see any

bruises or red marks on L.O.’s face, and there was no minor present at the scene. She also testified

that there was no indication that L.O. was intoxicated at the time.

-7- No. 1-22-1109

¶ 23 Clarissa Carrion, an intact clinical supervisor with Omni Youth Services, testified that she

was assigned to L.O. and J.R.’s case in February 2018. There had been a prior indicated report in

November 2017, which prompted the intact services. When she met with L.O., the plan was for

L.O. and J.R. to reside with Gabrielle. Mental health, domestic violence, and parenting services

were recommended. L.O. completed the parenting classes and engaged in domestic violence and

individual therapy services. The intact case was successfully closed in February 2019. Around the

time the case was closed, L.O. was self-reporting to Carrion that she was still receiving mental

health treatment.

¶ 24 L.O. testified that she lived with Josef until J.R. was two years old. During that time, an

incident of domestic violence occurred where Josef hit L.O. She and J.R. then moved in with her

mother for two years. Her brother, Michael, also lived with them at that time. L.O. denied that

there was a domestic violence incident involving Michael and herself, and she denied that she and

Michael had struck each other, resulting in her moving out. She further denied Michael obtaining

an order of protection against her. For the following three years, until May 2020, she and J.R. lived

with her sister, Gabrielle. She testified that Josef rarely visited J.R. during these years.

¶ 25 While living with Gabrielle, L.O. was in a romantic relationship with a man named Edwin,

and she would occasionally stay at his home, leaving J.R. with her mother. She admitted that her

name was also on the lease for Edwin’s home. She testified that on May 1, 2020, Edwin was

arrested at the home after neighbors in the building called the police that evening. L.O. denied that

Edwin struck, kicked, punched, or choked her that evening. L.O. further denied the police being

called to the home on multiple other occasions in 2019.

¶ 26 L.O. testified that on May 4, 2020, her mother picked her up from the parking lot of a hotel

in Hillside, Illinois, after she had been in a car accident while driving. She testified that her tires

-8- No. 1-22-1109

had popped and the axle was broken, causing her to slightly hit the highway rails before she exited

the highway. She denied that there were bottles of alcohol in the car at the time. Her mother drove

her to Gabrielle’s home, where she argued with her sister. She denied telling Gabrielle that she

was leaving with J.R. According to L.O., she wanted to go to the park and she left because

Gabrielle and Anna were arguing. She testified that instead Gabrielle took J.R. to Anna’s home. A

few days later, L.O. moved out of Gabrielle’s and into the home where Edwin lived.

¶ 27 On cross-examination, she testified that on May 1 she argued with Edwin and, contrary to

her previous statement that the neighbors called the police, she called the police on Edwin, who

was arrested. She testified that J.R. was not present on that evening. She further testified that she

was not drinking alcohol on the day of the car accident and no other cars were involved. She

testified that, when she was at her sister’s home, she removed items from her bed so that she and

J.R. could go to sleep, but she did not throw these items and she did not break anything.

¶ 28 L.O. made an offer of proof regarding witnesses she wanted to call, and the parties made

closing arguments.

¶ 29 On January 6, 2022, the court entered its adjudication order finding by a preponderance of

the evidence that the State met its burden of proof as to both allegations of neglect due to injurious

environment and abuse due to substantial risk of physical injury. That finding was based on the

domestic violence incident in May 2020 and Officer Warner’s credible testimony. The court also

found Gabrielle’s testimony credible, particularly her statement that she smelled alcohol on L.O.’s

breath after the car accident. The court orally stated, in regards to L.O.’s behavior in J.R.’s

presence, that there was “great concern about [L.O.’s] mental stability as well as her sobriety.”

¶ 30 On July 12, 2022, a dispositional hearing was held before the trial court. At this time, both

parents had filed motions for J.R. to be returned home to their care respectively. At the hearing,

-9- No. 1-22-1109

Kim Gray, the caseworker assigned to J.R.’s case, testified as to the parties’ progress since

temporary custody was entered. Gray testified that DCFS discussed both parents’ motions for J.R.

to be returned to their individual care, and she stated that it was not an easy decision to make. The

recommendation was for J.R. to be returned home to Josef, who appeared to be more stable than

L.O., and to continue weekend visits with L.O.

¶ 31 That day, the trial court entered an order making J.R. a ward of the court and finding L.O.

unable to care for J.R. and Josef to be fit, able, and willing to care for J.R. The court returned J.R.

to Josef’s care. In so ruling, the court stated that both parents were making progress but there were

concerns that L.O. was not “fully processing why we are here” after she reported to the caseworker

that the case was “all a lie.”

¶ 32 This appeal followed.

¶ 33 II. ANALYSIS

¶ 34 On appeal, L.O. solely asserts that the trial court’s finding that J.R. was abused was against

the manifest weight of the evidence and that the finding should be reversed.

¶ 35 The purpose of the Act is to “secure for each minor subject hereto such care and guidance

*** as will serve the safety and moral, emotional, mental, and physical welfare of the minor and

the best interests of the community.” 705 ILCS 405/1-2(1) (West 2018). The Act sets forth the

procedures the trial court must follow in determining whether a minor should be removed from his

or her parents’ custody and made a ward of the court. In re Arthur H.,

(2004). The process is initiated when the State files a petition for wardship and the minor is placed

in temporary custody.

. From there, the trial court conducts an adjudicatory hearing,

where “the court shall first consider only the question whether the minor is abused, neglected or

dependent.” 705 ILCS 405/2-18(1) (West 2018). If the trial court determines that a minor is abused

- 10 - No. 1-22-1109

or neglected, the court then conducts a dispositional hearing.

§ 2-21(2). At the dispositional

hearing, the trial court determines “whether it is consistent with the health, safety and best interests

of the minor and the public that [the minor] be made a ward of the court.” Id.

¶ 36 “[C]ases involving allegations of neglect and adjudication of wardship are sui generis, and

must be decided on the basis of their unique circumstances.” Arthur H.,

. In

adjudication proceedings, the State has the burden of proving allegations of neglect or abuse by a

preponderance of the evidence. In re A.P.,

. Stated another way, the State

must demonstrate that the abuse and neglect allegations are more probably true than not. Arthur

H.,

. Significantly, the same evidence that supports findings of abuse can also

support findings of neglect. In re R.G.,

.

¶ 37 The reviewing court is deferential towards the trial court’s findings of fact because “the

trial court is in the best position to observe the conduct and demeanor of the parties and witnesses,

assess their credibility, and weigh the evidence.” In re Sharena H.,

(2006). A reviewing court will not reverse a trial court’s finding of abuse or neglect unless it is

against the manifest weight of the evidence. In re Z.L.,

. “A finding is against

the manifest weight of the evidence only if the opposite conclusion is clearly evident.”

¶ 38 In the case before us, L.O. only disputes the trial court’s finding of abuse. She does not

dispute the finding of neglect nor does she challenge the dispositional order. Any such argument

is forfeited, and as a result, L.O. has conceded that J.R. was neglected based on an injurious

environment. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are forfeited ***.). On

this basis, the State and the public guardian argue that the appeal is moot as it does not involve any

actual controversy and relief in this court, i.e., a reversal of the abuse finding, would not have any

practical effect on the parties.

- 11 - No. 1-22-1109

¶ 39 To revisit the statute at issue, section 2-21(2) of the Act provides that if the court determines

that “the minor is either abused or neglected or dependent,” then a dispositional hearing shall be

held to determine whether it is in the best interest of the minor to be adjudged a ward of the court.

(Emphasis added.) 705 ILCS 405/2-21(2) (West 2018). As such, the court only need make one of

those findings to proceed to a dispositional hearing. The question before us then is whether L.O.’s

challenge to only one of the trial court’s findings, i.e., abuse, renders her challenge on appeal moot.

¶ 40 “[C]ourts of review will generally not decide abstract, hypothetical or moot questions.”

Adams v. Bath & Body Works, Inc.,

(2005). An appeal is considered

“moot” where there is no actual controversy and a reviewing court’s decision could have no

practical effect on the parties. In re Ivan H.,

(2008) (citing In re J.T.,

(2006)).

¶ 41 We first address two recently issued decisions from this court, which come to opposite

conclusions on this same issue. L.O. relies on In re S.G.,

, and the State

and public guardian rely on In re G.U.,

. In both cases, the trial court

made findings of abuse and neglect for the named minors, but the mother only challenged the

abuse finding on appeal.

¶ 42 In S.G., as stated, the respondent challenged only the trial court’s abuse finding but did not

challenge the neglect finding or the court’s dispositional order. The public guardian argued that

the appeal was moot.

. In determining that the appeal was not

moot, a panel of this court rejected the proposition “that a failure to challenge all bases for an

adjudication of wardship means that a parent is not entitled to challenge any of the bases.”

(Emphases in original.) Id. ¶ 24. The court additionally pointed out that there have been cases

- 12 - No. 1-22-1109

where this court has reviewed an appeal where only one of several bases is challenged. Id. (citing

In re A.S.,

, ¶ 22).

¶ 43 However, we note that the S.G. court did not address the mootness doctrine’s rationale, i.e.,

to limit the court’s review to actual controversies in cases where the relief requested would have a

practical effect. Additionally, whether the same allegations can support both findings of abuse and

neglect is not relevant to the issue of mootness. See S.G.,

(stating

that even though the abuse and neglect findings may be supported by the same evidence, they were

separate bases and the respondent was entitled to present her arguments challenging just one of

them). The argument here is that the concession of the neglect finding effectively renders the abuse

finding, and our review of it, superfluous as the neglect finding was sufficient to trigger a

dispositional hearing. Whether the same allegations support both findings is of no moment. For

these reasons, we decline to follow S.G. See O’Casek v. Children’s Home & Aid Society of Illinois,

(2008) (stating that we are not bound by the opinions of sister appellate courts).

¶ 44 Rather, we agree with the analysis and decision in In re G.U.,

,

which was decided by yet another panel of this court, after In re S.G. In G.U., the trial court found

all three named minors to be neglected and additionally found one of the minors to be abused. Id.

¶ 2. On appeal, the mother only challenged the finding of abuse, not the findings of neglect. Id.

¶ 19. The G.U. court first found that the issue of whether evidence established that the minors were

neglected had been waived. Id. Because of the waiver, the court subsequently determined that the

mother’s challenge to the abuse finding was moot, stating that the finding of neglect alone was

sufficient for the case to proceed to a dispositional hearing. Id. ¶¶ 19-20. The court specifically

remarked that it is unclear what the practical effect would be even if it were to conclude that the

abuse finding was against the manifest weight of the evidence. Id. ¶ 20; see also In re Lakita B.,

- 13 - No. 1-22-1109

(1998) (where this court concluded that the respondent’s concession as to the

trial court’s finding that she was unable to care for the minor was sufficient to support the

dispositional order, and therefore the challenge to the additional finding of respondent’s unfitness

was moot).

¶ 45 Similarly here, even if we were to find that the abuse finding was erroneous, the

dispositional order would not be vacated and the finding of L.O.’s inability to care for J.R. would

remain intact. No practical effect would be had on the parties. L.O. contends in her reply brief that

her reputation is affected by having an abuse finding, as well as a neglect finding, in this case.

However, she cites to no case that stands for such a proposition. Her concerns regarding the

recording of indicated reports in the central register are better directed at DCFS, as opposed to the

courts, as the allegations in this case were indicated prior to this court’s adjudication. It is common

for concessions of an issue to have an impact on an appeal, and we see no reason to ignore the

effect of her concession here.

¶ 46 Our conclusion here is additionally informed by two Illinois Supreme Court cases that are,

to a certain extent, analogous.

¶ 47 In In re Faith B.,

(2005), the trial court found that the minors were

abused and neglected after an adjudicatory hearing, and on appeal, the mother challenged both

findings. The supreme court first reviewed the trial court’s finding of neglect based on injurious

environment and affirmed the trial court’s finding.

. The court then went on to state

that it did not need to review the trial court’s finding of abuse as it had already upheld the finding

of neglect.

. The supreme court recognized that only one finding of either abuse, neglect,

or dependency is necessary to affirm a trial court’s judgment, and from this, we infer that the

- 14 - No. 1-22-1109

supreme court would also agree that if one of multiple bases for the court’s judgment is conceded,

then there is no need to review the additional bases. 1

¶ 48 Further, similar to the case before us, in In re D.L.,

(2000), the supreme court

found that an issue was moot as a result of the mother’s concession, albeit within the context of

the termination of parental rights. There, the trial court concluded that the State had failed to prove

any of the grounds for unfitness on its petition for termination of the mother’s parental rights.

. Both the State and the public guardian appealed, and this court reversed and remanded, finding

that the State had established at least three grounds on which the mother was an unfit parent.

. The mother then appealed from that ruling to the supreme court.

The supreme court pointed

out that the mother had challenged “only one of the grounds on which the appellate court

determined that she could be unfit” and therefore her failure to challenge the other grounds

rendered her appeal moot.

. Nonetheless, the supreme court decided to review the case on

its merits because interpretation of the unfitness statute was “of substantial public importance, the

relevant appellate court precedents are in conflict, and the issue is one that is likely to recur.”

¶ 49 Although different statutory schemes are involved, they include a similar mechanism in

that there are multiple bases to trigger termination of parental rights and multiple bases to trigger

a dispositional hearing. The supreme court clearly indicated that a party’s concession through

waiver of one basis for the trial court’s judgment renders a claim as to another basis moot because

there is no actual controversy and the outcome of the judgment would not be altered regardless of

the claim’s merits.

1 We acknowledge that there are innumerable cases where this court has reviewed each finding of abuse and neglect; however, that does not necessitate a contrary finding of mootness here.

- 15 - No. 1-22-1109

¶ 50 Because the supreme court’s conclusion that the issue was moot did not result in the

ultimate disposition, its opinion on mootness constitutes dictum. There are two types of dicta:

obiter dictum and judicial dictum. Exelon Corp. v. Department of Revenue,

(2009). The former is “not essential to the outcome of the case, is not an integral part of the opinion,

and is generally not binding authority or precedent within the stare decisis rule.” Lebron v. Gottlieb

Memorial Hospital,

(2010). The latter, however, is “an expression of opinion

upon a point in a case argued by counsel and deliberately passed upon by the court, though not

essential to the disposition of the cause.” Cates v. Cates,

(1993). Judicial dictum

is thus “entitled to much weight, and should be followed unless found to be erroneous.”

We

find the court’s opinion on the mootness of the mother’s appeal to be judicial dictum, and we must

follow it.

¶ 51 There is no need to determine whether an exception to mootness applies here because even

if we were to review the claim on its merits, we would nonetheless conclude that it was not against

the manifest weight of the evidence for the trial court to find J.R. to be abused due to substantial

risk of physical injury.

¶ 52 An abused minor under section 2-3 of the Act includes one whose parent or other person

responsible for his welfare “creates a substantial risk of physical injury to such minor by other than

accidental means which would be likely to cause death, disfigurement, impairment of emotional

health, or loss or impairment of any bodily function.” 705 ILCS 405/2-3(2)(ii) (West 2020). It is

sufficient that there be substantial risk of physical injury; actual injury is not required. In re A.S.,

. We reiterate that each case involving abuse and neglect

allegations must be decided on its own unique facts. Arthur H.,

.

- 16 - No. 1-22-1109

¶ 53 Adjudications of abuse and neglect must be reviewed based on the totality of the evidence.

See In re A.W., Jr.,

, 261 (2008). Considering the totality of the evidence in the

record, we conclude that the State proved by a preponderance of the evidence that J.R. was at

substantial risk of injury because there were two prior indicated reports of substantial risk of injury

from 2016 and 2017, both where J.R. was present; L.O. had been convicted of child endangerment

stemming from one of those reports in 2016; L.O. had a history of mental illness, psychiatric

hospitalizations, and substance abuse; there was a history of domestic violence involving L.O.,

including a recent incident with a boyfriend; there was a recent car accident accompanied by

credible testimony that L.O. had been intoxicated at the time; and there was an episode of anger

and erratic behavior from L.O., where J.R. was present, and after which J.R. admitted that it was

a “hurtful” event.

¶ 54 In particular, the evidence in the record shows that there was testimony from Gabrielle that

L.O. was intoxicated the night she was in a car accident. L.O. denied that she was intoxicated but

continued that, even if she were, J.R. was not present and DCFS should not be involved. The court

found Gabrielle’s testimony to be credible, and we will not substitute our judgment for that of the

trial court on matters of credibility. See In re D.F.,

(2002). Additionally, the

fact that J.R. was not in the car at the time of the accident does not defeat the argument that L.O.’s

alcohol use is concerning to J.R.’s safety and well-being, as the court remarked during the

adjudication hearing. L.O.’s lack of accountability for her actions, which is also concerning, must

also be considered.

¶ 55 Additionally, while she was intoxicated in the presence of J.R., she proceeded to behave in

a manner that negatively affected J.R. At 2 a.m., she was throwing things about the room and

yelling and using profanity towards her mother on the phone. This was a clear disruption of J.R.’s

- 17 - No. 1-22-1109

sleep, and he expressly told Mathena that the event was “hurtful” and caused him to shut down

like a blue screen on a computer, an indication that J.R.’s emotional well-being and mental health

had been affected by L.O.’s conduct.

¶ 56 The concerns regarding that incident are compounded by the domestic violence incident

occurring only days prior. Again, J.R. was not present but the presence of an individual in his

mother’s life who hits, slaps, kicks, and chokes her while under the influence of alcohol can

certainly be construed as a risk to J.R., especially where L.O. has her own history with alcohol use.

There was also evidence in the record that L.O. and J.R.’s 2017 relocation from her mother’s home

to Gabrielle’s was precipitated by conflict with her brother, who also lived at her mother’s home.

Further, L.O. had a child endangerment conviction from 2016 that required her to take both

parenting and anger management classes, which she completed. The fact that these issues

continued to persist despite previous court intervention and DCFS intact services demonstrates a

continued risk to J.R.’s emotional and physical health.

¶ 57 We briefly address L.O.’s arguments as to why the evidence did not support an abuse

finding. First, she argues that abuse is a “more serious and stringent” finding, suggesting that it

requires stronger evidence. This contention is refuted by the many cases that have found that the

same allegations supporting the finding of neglect due to injurious environment also supported the

finding of abuse due to substantial risk of physical injury. See In re A.S.,

; In re Tamesha T.,

; In re Kenneth D.,

(2006). This court has held repeatedly that the same allegations can support abuse and neglect

findings. See In re R.G.,

. As such, we reject her argument that the

evidence for abuse based on substantial risk of injury must be “more serious” than that required

for neglect due to injurious environment.

- 18 - No. 1-22-1109

¶ 58 Second, L.O. contends that the record does not show that J.R. was at substantial risk of

physical injury because “he had never been physically injured, nor threatened with physical injury,

nor was any physical violence directed at him, nor was he placed in a situation where anyone else

was likely to harm him.” She then suggests that we should reject the State and public guardian’s

assertion that J.R. sustained “impairment of emotional health.” L.O. seemingly argues that

emotional health should not be considered in determining whether there is a substantial risk of

physical injury, contrary to the statutory provision.

¶ 59 It is well established that actual physical injury is not required to sustain a finding of abuse

based on substantial risk of injury. See In re A.S.,

(stating that the

statute only requires substantial risk of physical injury, not proof that such an injury occurred). We

further find applicable here the A.S. court’s remark that, “[t]he fact that no one happened to be

seriously injured during the previous instances of violence is merely fortuitous, not proof that

respondent’s conduct is acceptable.”

In the recent incidents, L.O. herself was engaging in risky

behavior, involved in a violent relationship, and later acted in erratic behavior in front of J.R. due

to her frustration and anger. There was testimony that J.R. had already been emotionally harmed

due to her behavior. She also did not take responsibility for those actions, which suggests that she

does not understand the potential harm, placing J.R. at a greater risk for permanent physical or

emotional harm in the future. See In re Jordyn L.,

(“[O]ur courts

have made clear that we need not wait until a child becomes a victim of physical abuse or

permanent emotional damage before such a finding may be upheld.”). As such, we do not find this

argument persuasive.

¶ 60 Further, by including the language “impairment of emotional health” into the statute, the

legislature has clearly signaled that emotional and mental health of children is of paramount

- 19 - No. 1-22-1109

concern and on the same level of physical injury. It is imperative that we do not overlook markers

of emotional and mental abuse or the deterioration of mental or emotional health because they are

not always obvious to the untrained eye. Thus, L.O.’s dismissal of that type of injury is not well

taken.

¶ 61 We also find both cases cited by L.O. distinguishable, where the unique factual

circumstances of each case are simply not comparable to those before us. L.O. first cites to In re

M.W.,

(2008), as an example of a similar case where the court found that

an abuse finding was not warranted. There, the case arose because the minor’s half-brother was

adjudicated abused and neglected based on severe child abuse caused by the mother’s boyfriend

at the time.

. The trial court found that the minor was neglected due to an injurious

environment but did not find that he was abused due to a substantial risk of physical injury.

. The State and public guardian appealed to this court, contending that the State met its burden

on the abuse allegation.

. The State and public guardian argued that the mother was

diagnosed with mood disorders, and she had failed to complete therapy as related to the abuse of

the half-brother.

. This court affirmed the trial court’s decision, finding that the abuse

perpetrator was no longer involved in the situation, the minor lived with the respondents without

incident, he appeared healthy and cared for, and there was no history of violent behavior where

either respondent was the perpetrator.

. Effectively, this court refused to make a per se

finding of abuse based on the prior abuse of another child by an individual no longer involved in

the minor’s life.

¶ 62 In In re N.B.,

, 345 (2000), additionally cited by L.O., the supreme court

reviewed the trial court’s finding of neglect due to an injurious environment, which we point out

is not the finding we are faced with here. In any case, the finding there was based on one incident

- 20 - No. 1-22-1109

of anger by the respondent, where she threw “a tantrum” when she was unable to get formula for

her baby at a health department facility and she kicked a chair, hit the baby carrier against a wall,

and yelled at an employee. Id. at 347. There was no suggestion that the baby was harmed, and the

respondent caused no damage. Id. The anger was directed at employees, not her children. There

were no prior indicated reports, and extensive testimony that the respondent took care of her

children and was concerned for their well-being. Id. at 350-51. According to the supreme court,

the evidence “failed to show anger of a frequency, duration or quality that would indicate that the

children lived in an environment that exposed them to, or threatened them with, emotional or

physical injury.” Id. at 353.

¶ 63 The facts of these cases are markedly different from the case before us, particularly where

there have been multiple documented incidents involving J.R. that have exposed him to risk of

injury, in addition to L.O.’s history of mental health and substance abuse issues. As such, we find

these cases inapposite.

¶ 64 We recognize that the incidents that led up to the disposition of wardship are by no means

the most egregious that our courts have seen; neither are the incidents as reported here to be taken

lightly. We are cognizant that the well-being of a minor is at stake and also of the procedural stage

of these proceedings. On review, we conclude that the record does not demonstrate that the trial

court should have reached the opposite result, nor does it indicate that the trial court’s decision

was unreasonable or arbitrary.

¶ 65 Accordingly, the trial court’s finding of abuse based on a substantial risk of physical injury

was not against the manifest weight of the evidence.

¶ 66 III. CONCLUSION

¶ 67 For the reasons stated, we affirm the judgment of the circuit court.

- 21 - No. 1-22-1109

¶ 68 Affirmed.

- 22 - No. 1-22-1109

In re J.R.,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 20-JA-783; the Hon. John Huff and the Hon. Tiesha Smith, Judges, presiding.

Attorneys Sharone R. Mitchell Jr., Public Defender, of Chicago (Suzanne A. for Isaacson, Assistant Public Defender, of counsel), for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Victoria Kennedy, and Gina DiVito, Assistant State’s Appellee: Attorneys, of counsel), for the People.

Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain and Mary Brigid Hayes, of counsel), for other appellee.

- 23 -