In re M.B. - Case Law

2024 IL App (2d) 230294-U
No. 2-23-0294
Order filed January 31, 2024

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

In re M.B., a Minor ) Appeal from the Circuit Court
) of Lake County.
)
) No. 22-JA-131
)
(The People of the State of Illinois, ) Honorable
Petitioner-Appellee, v. Brittany W., ) Reginald C. Matthews,
Respondent-Appellant). ) Judge, Presiding.
______________________________________________________________________________

JUSTICE MULLEN delivered the judgment of the court.
Presiding Justice McLaren and Justice Birkett concurred in the judgment.

ORDER

¶1 Held: The trial court did not err when it permitted the State to amend the adjudicatory
petition after the commencement of the adjudicatory hearing but prior to the court’s
ruling.

¶2 Respondent-Appellant, Brittany W., appeals from the trial court’s order permitting the

State to amend its petition for adjudication of wardship and temporary custody hearing and

thereafter adjudicating the minor, M.B., neglected. We affirm.

¶3 I. BACKGROUND

¶4 M.B. was born to Brittany on August 28, 2022. That same day, a call was made to the State

Central Registry indicating that Brittany had given birth. Brittany had an open case with the Illinois
2024 IL App (2d) 230294-U

Department of Children & Family Services (DCFS) when she gave birth to M.B. On August 31,

2022, the State filed a petition for adjudication of wardship and temporary custody (Petition)

alleging that M.B. was neglected (705 ILCS 405/2-3(1)(b) (West 2022)) in that M.B. “is a minor

under 18 years of age whose environment is injurious to his/her welfare in that his/her mother

and/or father have a history of mental illness and/or his/her mother and/or father have been found

unfit in Lake County case numbers [sic] 19JA200 and have not been restored to fitness.”

¶5 An adjudicatory hearing was held over the course of four dates: May 23, 2023, May 24,

2023, June 8, 2023, and June 28, 2023. When the hearing commenced on May 23, 2023, the State

first called Matt Rodriguez to testify. Rodriguez stated that he was an investigator with DCFS and

he was assigned to Brittany’s case. Rodriguez reported to Rush Copley Medical Center on the day

Brittany gave birth to M.B. and he spoke with Brittany that day. Rodriguez testified that Brittany

was dishonest with hospital staff and refused to provide hospital staff or DCFS with her real name.

Brittany denied having another child and denied ever having been involved with DCFS. Rodriguez

testified that the case was thereafter reassigned and he was no longer involved in the matter.

¶6 The State next called Kimberly Watts. Watts testified that she is a clinical social worker

and the Director of Mental Health and Peer Support services at Nicasa Behavioral Health Services

(Nicasa). Watts supervised an individual who performed a global evaluation of Brittany on March

13, 2022. Watts did not read the report but was verbally advised of its contents. Watts testified that

after the global evaluation, Brittany was advised to seek services for mental health and substance

abuse treatment.

¶7 The State then called Jennifer Larson to testify. Larson related that she is a licensed clinical

social worker and a clinical supervisor at Nicasa. Larson became involved with Brittany’s case

when Brittany requested a review of her global evaluation. Larson stated that after reviewing the

-2-
2024 IL App (2d) 230294-U

assessment, she recommended that Brittany obtain a DUI evaluation in addition to the mental

health and substance abuse treatment. This DUI evaluation was recommended at the time of the

review because Larson became aware that Brittany had been arrested for driving under the

influence. Later, when Brittany’s DUI was amended to a negligent driving charge, Larson removed

this recommendation.

¶8 The State then called Angela Shumate. Shumate testified that she was a DCFS investigator

and took over the investigation of Brittany’s case. Shumate’s report was admitted into evidence.

¶9 The State next called Officer Bradstreet of the Lake Zurich Police Department. Bradstreet

testified that on September 4, 2021, she picked up Brittany from Good Shepherd Hospital to

transport Brittany to the Lake Zurich Police Department for booking related to an incident that had

occurred the day before. Bradstreet testified that during the booking process, Brittany banged her

head against a concrete table twice before Bradstreet told Brittany to stop, at which point Brittany

complied. Bradstreet testified that she asked Brittany about an incident with a four-year-old

resident at the Liberty Lakes Apartments, and Brittany replied with a statement along the lines of,

“if a four-year-old kicks me, I will kick a four-year-old back,” while kicking and punching the air.

Brittany then told Bradstreet to “hurry up” with the booking process, so that she could go home

and overdose and kill herself. Bradstreet testified that after booking, the Lake Zurich Fire

Department was called to transport Brittany to Good Shepherd Hospital for a psychological

evaluation.

¶ 10 The State next called Officer Kingery of the Lake Zurich Police Department. Kingery

testified that he was called to Brittany’s apartment on January 16, 2022. When Kingery arrived,

he met with Brittany in the front lobby. Brittany told Kingery that M.B.’s father, Joshua B., was

inside the apartment. Kingery was unaware whether Joshua lived in the apartment with Brittany.

-3-
2024 IL App (2d) 230294-U

Brittany advised Kingery that she told Joshua that she no longer wanted to be in a relationship and

Joshua punched her in the nose and stomach and pushed her into a piece of furniture. Kingery

testified that Brittany told him that Joshua punched her in the stomach so that she would have a

miscarriage. At this point, counsel for Brittany objected, arguing that Kingery’s testimony was

irrelevant, as the State’s Petition did not allege a history of domestic violence. The State countered

that the Petition alleged a failure to comply with services and that domestic violence would be tied

in as one of the services. The State argued that the testimony regarding alleged domestic violence

was for the purpose of demonstrating that domestic violence treatment was a necessary service.

After hearing arguments, the trial court sustained the objection. The court then recessed for the

day and continued for hearing on the following day, May 24, 2023.

¶ 11 When the matter reconvened on May 24, 2023, the State filed a motion to amend its

Petition. The State also filed an amended petition for adjudication of wardship (count I) that alleged

that M.B. was neglected (705 ILCS 405/2-3(1)(b) (West 2022)) in that M.B. “is a minor under 18

years of age whose environment is injurious to his/her welfare in that his/her mother and/or father

have a history of mental illness and/or domestic violence and/or his/her mother and/or father have

been found unfit in Lake County case numbers [sic] 19JA200 and have not been restored to fitness”

(emphasis added). The trial court held a hearing on the State’s motion to amend. In support of

amending the Petition, the State cited section 2-13(5) of the Juvenile Court Act of 1987 (Act),

which states:

“The court shall liberally allow the petitioner to amend the petition to set forth a cause of

action or to add, amend, or supplement factual allegations that form the basis for a cause

of action up until 14 days before the adjudicatory hearing. The petitioner may amend the

petition after that date and prior to the adjudicatory hearing if the court grants leave to

-4-
2024 IL App (2d) 230294-U

amend upon a showing of good cause. The court may allow amendment of the petition to

conform with the evidence at any time prior to ruling. In all cases in which the court has

granted leave to amend based on new evidence or new allegations, the court shall permit

the respondent an adequate opportunity to prepare a defense to the amended petition.” 705

ILCS 405/2-13(5) (West 2022).

The State then argued that the previous day the objection to evidence of domestic violence had

been sustained, but it asserted that “all evidence relevant to the neglect of the minor should be

presented to the court” in the hearing. The State contended that counsel for Brittany had received

a witness list with the officer’s names and police reports, so that there should not have been any

surprise as to the testimony they sought to elicit. Further, the State offered that it would be willing

to give counsel for Brittany additional time to prepare a defense to testimony that would be

presented if the motion to amend was granted. Finally, the State argued that it believed the

amendment to be in the best interest of M.B.

¶ 12 Counsel for Brittany objected to the motion to amend the State’s Petition. In support,

counsel noted that while the court shall liberally allow amendments up to 14 days prior to the

adjudicatory hearing, the parties were about to begin the second day of the hearing. As such,

counsel argued that the State needed to demonstrate good cause to amend the Petition and the State

had failed to demonstrate any good cause. Counsel argued that the parties had been in court

regarding this matter on many occasions prior to the adjudicatory hearing and that the State could

have amended the Petition on any one of those occasions. Counsel suggested that the statute did

not contemplate motions to amend like the State’s, because the State here decided it didn’t “care

for the ruling,” so it “amend[ed] the Petition so all the stuff becomes relevant in the middle of the

case.”

-5-
2024 IL App (2d) 230294-U

¶ 13 The trial court granted the State’s motion to amend the Petition. In issuing its ruling, the

trial court read through the statute and determined that, with regard to amending petitions, the

statute contemplates a

“situation where you are already in the trial. The trial is proceeding but now evidence

comes about, but the petition does not conform with the evidence that came around. That’s

when you get into ‘the Court may allow amendments of the petition to conform with the

evidence at any time prior to ruling.’ ”

Because the court found that the State was planning to amend the Petition to conform to the

evidence that the State sought to elicit through testimony and because the court had not yet issued

its ruling in the adjudicatory hearing, the trial court found that an amendment was appropriate and

granted the State’s motion. The trial court also found that allowing the State to amend the Petition

served the best interest of M.B.

¶ 14 After ruling on the motion to amend, the adjudicatory hearing resumed. The State called

Rebecca Tittle to testify. Tittle stated that she is a case worker at Camelot Care Center and was the

case worker for Brittany and M.B., as well as for Brittany and another child, T.C., as of January

2022. The order of adjudication and the ruling and disposition from T.C.’s case were admitted into

evidence, as well as a mandate from the appellate court in T.C.’s case. Tittle testified that she was

the case worker involved with rating the service plans in February 2022 and August 2022. Both of

the plans were admitted into evidence, as well as permanency orders from March 2022 and

September 2022. Tittle testified that she monitored Brittany for a neuropsychological assessment

and a Parenting Capacity Assessment, which encompassed individual therapy, substance abuse

services, and domestic violence services. Tittle testified that domestic violence services were

added in February 2022 when she became aware of domestic violence between Brittany and Joshua

-6-
2024 IL App (2d) 230294-U

through a records request to the Lake Zurich Police Department. In March 2022, Brittany was

referred to A Safe Place for victim services, however, Brittany instead completed a perpetrator

assessment in June 2022. After another incident of domestic violence occurred, Brittany was again

referred for domestic violence services at Renacer Latino in August 2022. Tittle testified that

Brittany had not completed the new domestic violence evaluation, domestic violence treatment, or

substance abuse treatment by the time M.B. was born. Tittle testified that Brittany did submit to

drug testing weekly and tested negative via at home tests. Tittle further testified that Brittany was

referred to the Josselyn Center for individual therapy but did not complete therapy there. Instead,

Brittany attended Campuzano Clinical Services and then Roan Solutions to complete her

individual therapy goals before M.B. was born. However, Brittany was then referred for additional

therapy. Tittle testified that Camelot Care Center recommended Brittany complete a Parenting

Capacity Assessment because DCFS wanted more testing. Tittle recalled scheduling the Parenting

Capacity Assessment for Brittany in March 2022. The assessment was then rescheduled because

DCFS recommended that Brittany first complete the neuropsychological assessment before the

Parenting Capacity Assessment. Brittany did not receive the neuropsychological assessment until

September 2022, after M.B. was born. Tittle further testified that Brittany denied being pregnant

when Tittle asked in June or July of 2022, and Brittany did not call Tittle after giving birth to M.B.

Tittle also testified that between the time that T.C.’s case opened in August 2019 and M.B.’s birth

in August 2022, Brittany only had supervised visits with T.C. Tittle stated that of the 11 visits

offered between September 2021 and March 2022, Brittany attended three. Of the 22 visits offered

between March 2022 and August 2022, Brittany attended eight. Tittle was the only witness called

on May 24, 2023.

-7-
2024 IL App (2d) 230294-U

¶ 15 The adjudicatory hearing resumed on June 8, 2023. The State first called Officer Kourtev

of the Lake Zurich Police Department. Kourtev testified that he was called to Brittany’s apartment

on January 3, 2022. When he arrived, he saw both Brittany and Joshua but spoke with Brittany

first. Kourtev testified that Brittany told him that Joshua struck her with his fists and cut her hand

with a knife. Kourtev saw the injury to her hand but saw no other visible injuries. Kourtev testified

that he then spoke with Joshua. Joshua stated that Brittany had jumped or stomped on Joshua, hit

him in his back with a metal chair, and damaged his gaming console as well as some of his games.

Kourtev observed the damaged property in the apartment. Kourtev observed no injuries on Joshua,

and Joshua stated that he did not know what Brittany was talking about regarding the knife.

Kourtev testified that he listened to the recording of the 911 call and identified the voices of

Brittany and Joshua. Kourtev heard Joshua’s voice asking if Brittany was going to hit him with a

chair.

¶ 16 The State next called Officer Young of the Lake Zurich Police Department. Young testified

that he was called to Brittany’s apartment on May 28, 2022, for a domestic battery report. Young

testified that Brittany was the only person at the apartment when he arrived. She told him that

Joshua struck her with an open hand, punched her, and took her phone. Young testified that

Brittany told him that Joshua came over to get some property and the two got into a physical

altercation. During the altercation, Joshua told Brittany that he would give her a miscarriage

because she did not want to be with him. Young did not see any injuries on Brittany but observed

that the apartment was in disarray. Brittany also disclosed another domestic battery incident that

occurred in Wisconsin in April. Although Young was unable to locate Joshua that day, Joshua

went to the police office that night. Joshua admitted to pushing Brittany, slapping her, and taking

her phone so that she would listen to him.

-8-
2024 IL App (2d) 230294-U

¶ 17 The State then called Officer Heer of the Lake Zurich Police Department. Heer testified

that he was called to Brittany’s apartment on June 7, 2022. He stated that Brittany was reporting a

domestic dispute with Joshua. Brittany told Heer that Joshua damaged her Nintendo Switch. Heer

verified that the Switch was broken. He also observed that Brittany was bruised on her arms and

legs. When Heer later spoke with Joshua, Joshua told him that Brittany was the aggressor. Heer

saw scratch marks on Joshua’s face, arms, and neck.

¶ 18 The State then called Joshua. Joshua testified that he began dating Brittany in 2021 and

lived with her from summer of 2021 until January 2022. Joshua testified that he recalled several

incidents of domestic violence prior to M.B.’s birth. He maintained that Brittany was the aggressor

in certain incidents, but conceded that he had slapped, pushed, and hit Brittany while she was

pregnant. Joshua testified that he was in jail following the May 28, 2022, incident and at the time

of M.B.’s birth. He stated that despite a no-contact order between Brittany and Joshua following

the May 28, 2022, incident, Brittany was contacting him through the jail. Joshua testified that he

was concerned about his own ability to take care of M.B., as well as about Brittany’s ability to do

so. He testified that he believed Brittany would not be able to take care of M.B. because of

Brittany’s mental health. Joshua was the last witness to testify on June 8, 2023.

¶ 19 On June 28, 2023, the parties reconvened for hearing. The State admitted into evidence a

certified conviction for Joshua. Defense entered into evidence certified court records from

Brittany’s DUI. All parties rested, and arguments of counsel were heard.

¶ 20 At the close of the adjudicatory hearing, the trial court reaffirmed its decision to allow the

State to amend its Petition to include allegations of domestic violence. The court determined that

there was no “testimony regarding a history of mental illness suffered by the mother that would

create an anticipatory injurious environment for the minor.” The court stated that it was “going to

-9-
2024 IL App (2d) 230294-U

hang its decision on the latter part of [the] petition, in that the mother and/or father have a history

of domestic violence.” The court identified the testimony of multiple officers regarding incidents

of domestic violence between Brittany and Joshua which ended in violence while Brittany was

pregnant with M.B. It also noted that the parties had not shown an ability to refrain from constant

communication with one another despite a no-contact order and the violence between them.

Finally, the court took account of the fact that Brittany had been found unfit in her case with T.C.

and had still not completed the services required of her in that case. Based on the foregoing, the

court adjudicated the minor neglected. It is from this order that Brittany appeals.

¶ 21 Brittany contends that the State should not have been allowed to amend its petition, as the

petition was not defective in the first place. Relatedly, she argues that at the time of filing the

amended petition, the State was not conforming the pleading to the proofs, as no evidence of

domestic violence had been admitted yet. She further argues that she was both surprised and

prejudiced by the proposed amendment. Because the petition did not originally allege domestic

violence as a ground for neglect, Brittany claims that her “counsel proceeded to trial on the well

held belief that the State would be required to meet their burden as to the allegations made in the

petition the State filed.” Thus, she argues that “counsel was certainly surprised to learn that the

State intended to call witnesses to testify to matters that counsel correctly deemed to be irrelevant,”

that this caused her prejudice in proceeding because counsel was no longer prepared for the

hearing, and that asking for more time to prepare would delay Brittany’s case. She also contends

that the amendment caused her prejudice because the court rested its decision largely based on the

evidence elicited after the amendment to the petition. Finally, Brittany argues that the amendment

was clearly untimely, and the State had several opportunities to amend the petition prior to

commencement of the adjudicatory hearing.

- 10 -
2024 IL App (2d) 230294-U

¶ 22 II. ANALYSIS

¶ 23 “All proceedings under the Juvenile Court Act of 1987 [(Act)] (705 ILCS 405/1-1 through

7-1 (West 2022)) are brought in the best interests of the child involved and should not be

undertaken lightly. At an adjudicatory hearing, a trial court must determine whether a minor is

abused, neglected, or dependent and the State must prove its allegations by a preponderance of the

evidence. [citation].” In re C.M., 351 Ill. App. 3d 913, 916 (2004). A trial court’s finding is

afforded great deference and will not be disturbed unless it is contrary to the manifest weight of

the evidence. Id.

¶ 24 Section 2-13(5) of the Act states: