2018 IL App (1st) 172659
Ill. App. Ct.2018Background
- M.S. (age 13) and his brother J.S. were adjudicated neglected and placed in DCFS custody; both lived with foster parent Crystal B. beginning in 2013.
- Over several permanency hearings, the boys were reported to be thriving in Crystal’s home; services had been provided to the parents and the permanency goal shifted to private guardianship.
- Caseworkers repeatedly testified that M.S. wanted to remain with Crystal, was doing well academically (IEP, tutoring), and participated in extracurriculars; Crystal facilitated school advocacy and activities.
- DCFS filed to vacate guardianship, terminate wardship, and appoint Crystal as M.S.’s guardian; the agency, guardian ad litem, and assistant public guardian supported guardianship.
- At the guardianship hearing the judge stated she had spoken with M.S. outside the record and summarized that he wanted to stay with Crystal; the court appointed Crystal guardian, vacated DCFS guardianship, and closed the case.
- Marie (mother) appealed, arguing the off-the-record, ex parte conversation with M.S. violated the Juvenile Court Act and due process and warranted remand for a new hearing before a different judge.
Issues
| Issue | Plaintiff's Argument (Marie) | Defendant's Argument (State/DCFS) | Held |
|---|---|---|---|
| Whether the trial judge’s off-the-record, ex parte conversation with the child violated the Juvenile Court Act and due process | The judge’s private conversation with M.S. was improper and required presence of counsel or a court reporter; relying on it tainted the guardianship decision | Any conversation was permissible or harmless; multiple witnesses independently supported guardianship | Forfeited by Marie for failing to object; even assuming error, it was not prejudicial because the judge’s comments were cumulative of other evidence, so no relief granted |
Key Cases Cited
- In re April C., 326 Ill. App. 3d 225 (discussing preservation of issues by objection)
- In re William H., 407 Ill. App. 3d 858 (application of forfeiture rule in child custody context)
- People v. Herron, 215 Ill. 2d 167 (plain-error standard cited for appellate review)
- Nassar v. County of Cook, 333 Ill. App. 3d 289 (no prejudice where allegedly improper evidence was cumulative)
- People v. Davidson, 160 Ill. App. 3d 99 (cumulative evidence negates plain error)
- In re Marriage of Saheb, 377 Ill. App. 3d 615 (plain error in civil cases requires egregious prejudice)