In re J.W.

                                        FOURTH DIVISION
                                        JUNE 26, 1997











No. 1-95-3373


In re J.W., a Minor                     )    Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS,    )    Circuit Court of
                                        )    Cook County.
               Petitioner-Appellant,    )
v.                                      )    No. 95 JA 02947
                                        )
APRIL W.,                               )    Honorable
                                        )    Timothy J. Szwed,
               Respondent-Appellee.     )    Judge Presiding.



     JUSTICE CERDA delivered the opinion of the court:           

     We are asked to decide whether evidence of prenatal alcohol
abuse, other than that resulting in fetal alcohol syndrome (see
705 ILCS 405/2-18(2)(c) (West 1994)), can properly be considered
in determining whether a minor's environment after birth is
injurious to his welfare.
     Following an adjudicatory hearing, the trial court found
that the minor, J.W., was neglected.  At a dispositional hearing,
the court adjudicated J.W. a ward of the court, finding that
J.W.'s mother, respondent April W., was unable and unwilling to
care for J.W.  The trial court also found that it was in J.W.'s
best interests to be placed in guardianship.  On appeal,
respondent argues that the neglect finding must be reversed
because the evidence of respondent's alcohol use did not prove
that J.W.'s environment was injurious.  Respondent also contends
that because the Department of Children and Family Services
(DCFS) failed to make reasonable efforts to help her find
housing, her lack of permanent housing cannot serve as a basis
for a finding of neglect by reason of an injurious environment.  
     J.W. was born on March 5, 1995.  On April 24, 1995, the
State filed a petition for adjudication of wardship, alleging
that J.W. was neglected pursuant to section 2-3(1)(b) of the
Juvenile Court Act (405 ILCS 405/2-3(1)(b) (West Supp. 1995))
because he was a minor whose environment was injurious to his
welfare.  The petition also alleged that J.W. was abused pursuant
to section 2-3(2)(ii) of the Juvenile Court Act (405 ILCS 5/2-
3(2)(ii) (West Supp. 1995)) because he was at substantial risk of
physical injury as a result of respondent's actions.  On the same
day, a temporary custody hearing was held where the Public
Guardian was appointed to represent J.W.  The trial court found
that there was probable cause to believe that J.W. was an abused,
neglected or dependent minor and that there was an urgent and
immediate necessity to remove him from respondent and place him
in the temporary custody of DCFS.  The trial court also made an
oral finding that reasonable efforts could not have prevented the
need to remove J.W. from respondent.
     At an adjudicatory hearing held on September 18, 1995, the
parties proceeded by way of stipulation.  It was stipulated that,
if called, Dr. Ann Warren, J.W.'s delivering doctor, would
testify that at the time of J.W.'s birth, respondent, who
appeared to be intoxicated, stated she had been drinking and had
become intoxicated every two weeks during her pregnancy.  The
State then requested that J.W.'s medical records be admitted as
evidence.  Each of the parties published portions of those
records.  
     The relevant portions of J.W.'s medical records, both
published and unpublished, are as follows.  The hospital
discharge summary indicated that J.W. was born with apnea of
prematurity, or breathing difficulties, for which he required
monitoring.  This report also indicated that J.W. had a heart
murmur.  The summary further provided that J.W. would need
extensive medical monitoring including examination by a private
pediatrician one week after discharge, a hearing screening
performed in one to two months, and blood tests in two weeks. 
J.W. also required an eye examination for retinopathy of
prematurity two to three weeks after his discharge.  Retinopathy
of prematurity, also known as retrolental fibroplasia, is
"abnormal replacement of the sensory retina by fibrous tissue and
blood vessels, occurring mainly in premature infants having a
birth weight of less than 1500 [grams] who are placed in a high
oxygen environment."  Illustrated Stedman's Medical Dictionary
529 (24th ed. 1982).  Additionally, J.W. needed a repeat
pneumogram, or breathing test, performed in two to three months
time.  The report indicated that further management of J.W.'s
apnea would be based on the results of the pneumogram.
     A social service report dated March 6, 1995, indicated that
J.W. was referred to social services because he was born
prematurely with a low birth weight of two pounds and fifteen
ounces due to probable alcoholism and smoking by respondent
during her pregnancy.  At that time, respondent stated that she
was living with J.W.'s father in Barrington, Illinois.  An entry
dated March 24, 1995, indicated that respondent said she was
living with her grandfather's son in Northfield.  However, she
had given hospital personnel the telephone numbers of her former
husband and a friend as a means of contacting her.  Respondent
stated that she intended to get an apartment in Wauconda or
Barrington.  She also intended to get a job, possibly in a
currency exchange owned by some friends.  The entry noted that
respondent often spoke of her devotion to J.W. and his importance
to her.  This was confirmed by nurses who observed her visits
with J.W.  Respondent appeared to be happy and to have bonded
with J.W.  She had no objections to a public health nurse making
home visits when J.W. was released from the hospital.  Respondent
also indicated that she intended to complete a program to get
back her driver's license, which she had lost due to driving
under the influence.  
     An April 7 entry indicated that respondent still did not
have a stable address and that the social services worker
suspected that respondent was living with her former husband. 
Respondent stated that she was trying to get an apartment nearby
and that she would be working at a beauty shop in Fox Lake, where
she would bring J.W. during the day.  An entry dated April 14
stated that when respondent called the hospital on April 13, she
sounded intoxicated.  On April 17, respondent called the hospital
and said she would be going to North Dakota to visit her father,
who was reportedly ill.  However, during an April 18 visit,
respondent refused to leave her parent's telephone number,
stating "I'm not going to give a number now, I'm in a hurry." 
That day respondent stated she would be going to a condominium in
Winnetka or Northfield.  She later stated that the condominium
had no telephone.  An April 21 entry indicated that social
services had attempted to get telephone service reconnected in
the Northfield condominium and learned that it might be possible
to get restricted telephone service.
     At the conclusion of the adjudicatory hearing, the trial
court found that J.W. was a neglected minor because his
environment was injurious.  The case proceeded to a dispositional
hearing, where a Catholic Charities worker, Susan Davis,
testified that she was assigned to J.W.'s case.  A service plan
had been developed for respondent, but she had not yet
cooperated.  Respondent was scheduled to begin alcohol abuse
treatment the day after the dispositional hearing.  She had been
referred for such treatment four or five times previously but had
failed to follow through on those referrals.  Respondent had
completed a two day detoxification program to which she was
referred after smelling of alcohol during a home visit. 
Respondent had competed a psychological examination the week
before the hearing, but a written report was not yet available. 
She had missed her first three appointments for the psychological
examination.  Respondent informed Davis that she had rented a
room in a house the week prior to the dispositional hearing, but 
Davis had not yet been able to confirm this.  Respondent had been
referred to the Lake County Housing Authority for housing
assistance.  At the time of the dispositional hearing, J.W. was
no longer in need of an apnea monitor, and respondent was
visiting him weekly.
     The trial court found that respondent was unable and
unwilling to care for J.W.  It also found that reasonable efforts
had been made and that appropriate services aimed at family
reunification had so far failed.  J.W. was placed under the
guardianship of DCFS.
     Respondent first argues that evidence of her alcohol use did
not prove that J.W.'s environment was injurious.  She contends
that it was improper for the trial court to consider evidence
that she drank during her pregnancy because the Juvenile Court
Act does not apply to fetuses.  Respondent also contends that no
causal relationship was established between her drinking and
J.W.'s medical condition.  Finally, respondent contends that the
trial court improperly based its finding that J.W. was neglected
on "anticipatory neglect."  
     Neglect is a parent's failure to exercise the care demanded
by the circumstances.  In re Brooks, 63 Ill. App. 3d 328, 337
(1978).  It can be either a wilful or an unintentional disregard
of parental duty.  In re Brooks, 63 Ill. App. 3d at 337.  An
injurious environment is "an amorphous concept which cannot be
defined with particularity."  In re S.D., 220 Ill. App. 3d 498,
502 (1991).  Each case involving allegations of neglect by reason
of an injurious environment must be decided on its own facts.  In
re S.D., 220 Ill. App. 3d at 502.  The State must prove the
allegations of neglect by reason of an injurious environment by a
preponderance of the evidence.  In re D.M., 258 Ill. App. 3d 669,
672 (1994).  We will not disturb the trial court's finding of
neglect unless it is against the manifest weight of the evidence. 
In re A.D.R., 186 Ill. App. 3d 386, 390 (1989).  
     We first consider whether the trial court properly
considered evidence of respondent's drinking during her pregnancy
and determine that it did.  This evidence was not offered to show
that respondent provided an injurious environment for the fetus,
nor to show that respondent's drinking caused J.W.'s condition. 
Rather, this evidence was relevant to the issue of whether
respondent had a drinking problem that made J.W.'s environment
after birth injurious.  
     Illinois courts have considered evidence of a parent's prior
conduct in determining whether a child's environment is
injurious.  In In re Harpman, 146 Ill. App. 3d 504 (1986), the
court found that the father's children from his current marriage
were abused by reason of an injurious environment.  While there
was no direct evidence that the father had abused the children
from his current marriage, either sexually or otherwise, he had
been adjudged unfit two years earlier because he sexually abused
his daughters from a prior marriage.  In re Harpman, 146 Ill.
App. 3d at 507-08.
     In In re A.D.R., 186 Ill. App. 3d 386 (1989), the court
found that a three-month-old baby's environment was injurious
where the child's father had been physically abusing the child's
mother for as long as seven years.  In re A.D.R., 186 Ill. App.
3d at 388.  The reviewing court noted that it was not necessary
to wait until the minor herself became the victim of physical
abuse.  In re A.D.R., 186 Ill. App. 3d at 393.
     In both In re Harpman and In re A.D.R., the courts properly
considered evidence of previous parental conduct in determining
whether an injurious environment currently existed.  In In re
A.D.R., as in this case, the conduct considered predated the
child's birth.  We find it was proper for the trial court in this
case to consider evidence of respondent's drinking during the
months preceding J.W.'s birth.
     Respondent further asserts that there was no causal
relationship established between her drinking and J.W.'s
condition and that J.W.'s needs were "quite manageable."  The
issue before us is not whether respondent's drinking during
pregnancy caused J.W.'s medical problems at birth but rather
whether J.W.'s environment after his birth was injurious.  The
trial court based its finding of neglect by reason of an
injurious environment on "the mother's use of alcohol immediately
prior to and up to and including the point of delivery of the
minor, the minor's special needs and the lack of an adequate plan
for the minor after the minor was born."  
     Respondent suggests that J.W.'s needs were not in fact so
special, noting that children with such needs "are sent home from
hospitals everyday where they are monitored by both machines and
appropriate personnel."  However, the evidence in this case
indicates that respondent had failed to provide a home for J.W. 
She could not provide a permanent address for hospital personnel
during the six weeks that J.W. was hospitalized.  When she
finally informed hospital personnel that she was moving to a
condominium in Northfield, she also indicated that she had no
telephone service.  Without a permanent address, J.W. could not
receive the necessary care from a public health nurse.  Without a
telephone, respondent would not be able to summon help for J.W.
in case of a medical emergency.  
     In addition to a lack of permanent housing, respondent's
apparent drinking problems raise grave concerns about her ability
to care for a child with J.W.'s medical problems.  Not only was
J.W. being released from the hospital on a monitor, but he also
needed follow-up examinations with numerous doctors.  It is
extremely doubtful that respondent would be able to provide the
care J.W. needed while she was drinking.
     The third prong of respondent's first argument is that the
court improperly based its finding on "anticipatory neglect." 
Respondent argues that because she never had custody of J.W.,
they had never shared an environment.  She contends that the
court cannot base its neglect finding on a belief that respondent
would neglect J.W. if she were given custody.  
     Respondent relies on In re Nyce, 131 Ill. App. 2d 481
(1971), where the trial court adjudicated an infant minor as
being neglected.  DCFS had taken custody of the minor while she
was in the hospital.  The minor's mother was 17 years old and had
been adjudicated a ward of the court herself as a neglected minor
two years earlier.  Nyce, 131 Ill. App. 2d at 483-85.  At the
adjudicatory hearing, a DCFS employee testified that he did not
believe the mother would be a "fit and proper mother."  The
mother testified that she was living with a couple who had
expressed interest in adopting both her and the infant child. 
Nyce, 131 Ill. App. 2d 484-85.  The reviewing court reversed,
finding that the minor was not neglected.  The court noted that
it could "not conceive of how the allegations of the petition
could have been established in a case such as the present where
it is clear from the record that the parent never had custody of
the child."  Nyce, 131 Ill. App. 2d at 486-87.
     This case differs substantially from Nyce.  The mother in
Nyce had a stable home and there was no evidence that she was not
able to properly care for her child.  In this case, however,
respondent had no permanent address.  When she finally informed
the hospital staff that she had found a place to live, she also
indicated that she had no telephone service.  Due to J.W.'s
medical condition, he required home monitoring and visits by a
public health nurse.  The evidence also indicated that respondent
had a drinking problem, which could affect her ability to care
for J.W.  
     We reject respondent's argument that the court could not
adjudicate J.W. neglected when he had never been in her physical
custody.  In In re B.C., 262 Ill. App. 3d 906 (1994), the State
filed a petition alleging that B.C. and her two brothers were
neglected because their environment was injurious to their
welfare.  The evidence at the temporary custody hearing revealed
that the mother, while intoxicated, had bitten one of B.C.'s
brothers and then disappeared.  She was arrested approximately
one month later and was again intoxicated.  Additionally, she had
been failing to take B.C.'s brother to his doctor appointments. 
In re B.C., 262 Ill. App. 3d at 908.  At the time, B.C. was not
living with the mother.  B.C.'s mother had previously left B.C.
with her godmother without providing any instructions.  In re
B.C., 262 Ill. App. 3d at 909.  The trial court found probable
cause existed to remove B.C.'s brothers from their mother's care
but dismissed the petition regarding B.C.  The reviewing court
reversed this dismissal, noting the fact that B.C. lived with her
godmother was irrelevant because B.C.'s mother retained legal
custody and could retrieve her daughter at any time.  The court
found that "this possibility of removal left B.C. subject to the
abuse and neglect."  In re B.C., 262 Ill. App. 3d at 908-09.
     Similarly, we do not believe it was necessary for the trial
court to first release J.W. to his mother's physical custody
before finding that his environment was injurious.  "Parents have
the duty to protect their children from harm, and their refusal
to provide their children with safe and nurturing shelter clearly
falls within the concept of statutory neglect."  In re M.K., 271
Ill. App. 3d 820 (1995).  Respondent clearly could not provide
J.W. with the type of shelter or extensive care he needed.
     Respondent also argues that because DCFS failed to make a
reasonable effort to help her find housing, her lack of housing
cannot serve as a basis for the injurious environment finding. 
We need not address this argument because we find that evidence
of respondent's alcoholism was a sufficient basis to support the
finding that J.W. was neglected because his environment was
injurious.
     The judgment of the circuit court is affirmed.
     Affirmed.
     WOLFSON, P.J., and BURKE, J., concur.