*1 (The Illinois, K.S., Petitioner-Appellee, v. People of the State of In re a Minor S., Respondent-Appellant).
Kevin Second District No. 2 — 02—0861
Opinion filed June *2 O’MALLEY,J., concurring part dissenting part. and Pinsel, Daniels, Long Pinsel, Elliot A. Waukegan, of & appellant. of for (Martin Waller, Attorney, Michael J. Waukegan State’s of P. Moltz and London, Attorneys Richard S. Appellate Office, both of State’s Frosecutor’s counsel), Gillis, Evanston, and Martha M. People. for the JUSTICE McLAREN delivered opinion of the court: 2002, In K.S. adjudicated neglected minor, made a ward of court, placed and under legal guardianship Department (DCFS). Family S., Children and Respondent, Services Kevin father, minor’s appealed, court, and among things, this other reversed the adjudication wardship and guardianship ordered that and of K.S. be respondent. See 343 K.S., re (2003). 3d 177 Our court denied the petition State’s for leave but, appeal in an exercise of the court’s supervisory authority, directed this court to vacate our judgment light and reconsider it in (2004). 212 Ill. 2d 441 H., In re Arthur reconsideration, After such we affirm in part, in part, reverse and remand. 16,
On January 2002, the State filed a petition three-count adjudication wardship temporary custody of K.S. Counts and mother, II, abuse, alleging neglect respectively, related K.S.’s C., alleged sibling, Baby her in the murder of KS.’s Valerie role Boy C., III that K.S. an abused January alleged 13. Count T.V, minor in that committed a sex offense another sibling K.S., penis. hand on his by attempting place TV’s urgent necessity to remove K.S. trial court found an immediate facility, granted place from the home and her a shelter care temporary guardianship to DCFS. I, II, April 11, the and III and filed an
On State withdrew counts neglected in that her alleging additional count that K.S. was IV failed injurious to her welfare because Valerie environment was of DCFS. protect by failing safety plan her to follow the Valerie and that the evidence would stipulated to a factual basis for count IV that, called, neglected. represented that K.S. was The State testify that she was involved Evelyn DCFS caseworker Martinez would 12, June investigation sexual abuse of T.V On her and told safety plan Martinez discussed the with Valerie any of her children and could not have contact with 25, 2000, she told Valerie could not in their house. On October live indicated, and she going that the case be that she was to recommend that, in effect. Sometime after safety plan reiterated that the was still *3 living in the house with respondent had been Martinez learned that was also told that the criminal and her children. The court Valerie that he had allegation from the against respondent, case which arose T.V, January sexually had been dismissed molested as upon “the factual basis neglected, found K.S. based Hayward attorney] [Valerie’s and agreed upon by and Ms. presented history ordered a social The court then her client and the State.” undergo a sexual offender respondent investigation ordered counsel, stated as follows: through his Respondent, evaluation. record, admitting my client is so it is clear on the “Just was dismissed. anything. My client’s criminal case stipulating to client!,] advocate that that sex my I don’t feel as his talking with dismissed, charge necessary that was offender evaluation day one. adamantly denied it from he has the child to be he doesn’t want record to show that I want the already been criminal case has adjudicated neglected, and that the The case was already for that. He was incarcerated disposed of. appropriate.” it is And we don’t feel that dismissed. “absolutely persist can respondent responded that The trial court me they If tell be ordered. denial, going but the evaluation his IBut All the better. treatment, great, wonderful. don’t need you that because I have to you through follow going am to order [K.S.] make sure that is safe.” hearing. 28, 2002, proceeded to a
On June the case Charities, stated history investigation, prepared by The social Catholic her family that DCFS had with the when T.V and become involved sexually them and reported respondent cousin “had fondled However, “agreed molested them.” the case was closed when Valerie any contact safety plan, reported to a that she would not allow According report, to the respondent. between her children” and incidents” and he girls stated that “the lied about the any responsibility report “has denied for the sexual molestation was indicated DCFS in 2000.” Catholic Charities concluded that “may [respondent] fully such denial indicate that does not understand “in children’s needs” and further characterized responsibility” Respondent denial about his in the DCFS case. comply regarding “reluctant to with services” the sexual molestation charge. did report respondent’s only note that criminal conviction deceptive practices. However, was of concluded that acknowledge previous “needs to his role in the DCFS al- legation molestation, of sexual which was indicated. He needs to complete assessment, a sexual offenders and follow all recommenda- tions of the dispositional hearing, respondent assessment.” At the deny any continued to wrongdoing and asked that the court not order him complete a sex offender him assessment or “make do sex of- fender counseling.” hearing. No witnesses testified at the After hear- ing argument, minor, the trial neglected court found K.S. to be a made court, gave her a ward of the legal guardianship to DCFS. Ad- dressing respondent, the court stated:
“Okay. situation, understand, just you Here is the so Mr. [S.],I have to look at what is in the best interest of the children.
The issue is not whether the criminal case was dismissed or not. why idea have no it was dismissed. I have no doubt that it was. I complaining don’t even if it know same witness. But the is- says you sexually sue now one of is that the children molested through her. That not be true. All the more reason to follow they say. They reviewing with this evaluation and see what will be reports. They reviewing if there will be the statement to see recantation, was a is. I don’t know from whatever situation *4 you, what I can see here. But what I can tell there is a founded report. by girls. There was a statement made one of the And that you young girl, are the father of to make sure that have protected. going that she is So I to order the offender am sexual days.” evaluation within the next 30
570 reconsider,
Respondent filed a motion to denied which was An appeal trial court. to this court followed.
Respondent first the trial court erred contends when adjudicated neglected K.S. a minor. prove allegations neglect by preponderance
The State must
(2000).
S.S.,
121,
A
evidence.
re
126
preponderance of the evidence is an amount
evidence that leads a
probable
trier of fact to find that the fact at
than
issue more
not.
S.S.,
neglect
A trial
App. 3d
126-27.
court’s determination of
appeal
findings
against
will
be reversed on
unless its
of fact are
evidence;
weight
this is
the trial court
manifest
so because
witnesses,
in
position
credibility,
the better
to observe
assess
S.S.,
weigh
supreme
evidence.
3d at 127. Our
court has
only question
adjudicatory hearing
held that the
to be resolved at an
neglect
neglected,
parent
is whether a child is
and not whether each
ful;
minor
adjudicated
neglected
has
only
after the trial court
In Arthur
parents.
that the court is to consider the actions of the
re
H.,
Here, only remaining neglect petition alleged count of the injurious that K.S.’s to her welfare because Valerie environment protect by failing safety plan failed to her to follow the of DCFS. Vale allegation rie basis for the al stipulated to this and the State’s factual Thus, legation. by respondent. This evidence was unrebutted the al legation neglect proved by preponderance of the evidence. Therefore, finding neglect is affirmed. question did reach the
While the
court Arthur H.
scope
dispositional hearings
neglect
or abuse cases due to
there, the court did make clear that such
the facts and circumstances
touching
rights,
on fundamental
relationships
cases “involve
parents
ties
and their children
not be severed
natural
between
H.,
Ill. 2d
speculation.” Arthur
at 477-78.
the basis of mere
this,
proof.”
held
its burden of
Arthur
Because of
“the State must be
Therefore,
contention,
H.,
respondent’s next
review, will be reversed a trial court’s determination weight manifest findings of fact are if the court’s by selecting an abuse of discretion or if the court committed evidence
571 220, J.P., 3d In re 331 inappropriate dispositional order. an (2002). complete the evalu respondent ordered trial court twice and, second, made, as first, finding neglect was when the ation — sup instance was the order part order. In neither dispositional court’s fact; therefore, must reverse ported by law or we hear and remand the cause for a new dispositional order ing. regarding nothing except tertiary hearsay rank
The court heard At the by respondent. allegations of a sexual offense committed nothing heard proved, to be it had time that the court found count IV Martinez would that DCFS caseworker except stipulated what Valerie stipulation, In it was stated testify testify. to if she were called to that investigation in an testify that Martinez would that she was involved safety that DCFS’s allegation of the molested T.V and plan prohibited respondent’s presence in house. It was the Valerie’s the court’s find- safety plan violation of this formed the basis of However, ing neglect. the court also heard that the criminal case against respondent, allegations arose from the same of sexual which molestation, 2000, January years dismissed in more than two was III prior hearing, petition, alleging to the and count abuse based allegations, just on those same was dismissed moments before. instances, complete against respondent both lack of evidence leads us to conclude that the trial an abuse court’s actions were both weight discretion and the manifest of the evidence. report generated dispositional hearing Catholic Charities for the report regarding included the statement that the DCFS the molesta- However, allegations respondent consistently tion “indicated.” was allegations, report denied the and the Catholic Charities noted this fact.
The trial court never heard direct evidence that stipulation had committed that she sexual offense. Valerie’s stating al safety plan dispositional report violated legations only had made sexual molestation been were “evidence” that the heard. The trial court even ordered the the court only stipulation, sexual offender evaluation based on the dispositional report ordered the even cre evaluation before the was indicated, report designation ated. such a means While DCFS was only neglect supported by of abuse or “credible Services, Family 209 Ill. Lyon Department evidence.” v. Children & (West 2004). 264, (2004); hand, see 325 ILCS On the other 5/3 charge had dismissed the criminal court knew that State against respondent the abuse based on the withdrawn incident,
same always had denied the al- legations. report supported Reference to a DCFS by “credible evidence” ordering respondent undergo insufficient basis for a sexual offender evaluation. facts,
“Credible evidence” means that the
in light
available
viewed
circumstances,
surrounding
person
would cause a reasonable
neglected. Lyon,
believe that a child has been abused or
our court which dealt with an administrative an finding indicated of sexual abuse that entered was into the DCFS (West 2000). Register. Central See 325 ILCS et seq. plaintiff, 5/1 director, high sought finding school choral of the reversal indicated expungement report register. of the from the Our court recognized plaintiff protected process rights had due implicated by register reputation ability his inclusion on the —his pursue present employment implicated, and future were both as by teaching jobs following evidenced the fact that he had lost two entry register. Lyon, 2d at report on the See 209 Ill. 273-74. analyzed competing subject’s court then interests involved—a significant obtaining and a final decision in a interest mistaken, report, an if prompt and efficient manner so that indicated expunged possible, significant as and the State’s interest quickly children, protecting register being the welfare of with the one provide protection. Lyon, mechanism used to such See 209 Ill. 2d at place more of the appropriate 278. The court concluded that was may subject report risk of error on the adult of a than on children who It in this context Lyon, suffer additional abuse. 209 Ill. 279. was analyzed the use of the credible evidence of risk of error (used finding and the first support standard the initial indicated stage subject’s preponderance of the evidence appeal) of a (used hearing). at the administrative standard later evidence” standard the “credible that use of The court concluded automatically does not first-stage appeal investigation initial second-stage appeal subject process, of due deprive of the evidence” stringent “preponderance under the more conducted initially placed on risk of error is the entire standard. While appeal would only period, a finite subject, it remains so for stringent, risk-balancing standard. under a more finally determined However, “constitutionally inap 282. it is Lyon, See 209 Ill. evidence, on credible reports indicated based propriate allow the deadlines subjects,” persist beyond damaging their effects on are appeals process that completion of the administrative Thus, the Ill. 2d at 282. administratively Lyon, set. statutorily and standard, low, combined with ruled that the credible-evidence (which led process plaintiffs appeal delays in the administrative approximately months after being to a decision issued indicated), process rights. Lyon, due plaintiffs violated case, evidence” has now In this the noxious cloud of “credible years already six hovered over for more than the trial court ordered years more than two old when However, light undergo the sexual offender evaluation. even it, the trial court age and low standard of the “evidence” before finder, explanation abdicated its role as fact as is evidenced its itsof order: “The issue is not whether the criminal case was dismissed why not. I no idea it was dismissed. I have no doubt that it have But complaining was. I don’t even know it was the same witness. sexually says you one of children the issue now is that molested her. That not be true. Ml the more reason to follow they say.” (Emphases through with this evaluation and see what *7 added.) following attempted explanation that with the
The State bolster argument: matter,
“Arguably,in the trial court assumed that the the instant posed Respondent was a sex who harm K.S. because offender evaluation, related had no other course of action without a added.) (Emphasis consistent with the best interests of K.S.” withdrawn, adjudicatory III had We note that count not been of action to hearing proper acceptable been a course would have posed a threat to K.S. respondent determine if was a sex offender and evidence, decisions on not as- may, Be that as it trial courts are to base “[a]ll the more reason” to sumptions. The absence of evidence parent possible order a to submit to a sexual offender evaluation and counseling.
Respondent given was never a hearing at which testi- witnesses fied, opportunity with the his present to cross-examine witnesses and possibility own evidence. The State foreclosed this when it dismissed charge criminal allegations against withdrew abuse Instead, respondent in count III. the court ordered the evaluation old, without minimally substantiated, evidence closer than third- reports, hand attempted rely and it on the sexual offender evalua- respondent tion to guilty alleged whether was of the sexual of- fenses. In addition to the trial court’s error in ordering the evaluation all, point fallacy we must out the reasoning. court’s We are determined, authority pursuant unaware that has Frye, utilized. States, such an evaluation Frye be so See v. United 293 F. (D.C. 1923). Completion Cir. of the evaluation would not establish respondent sexually Respondent molested T.V denied the al- legation. by the absence of an admission or stipulation respondent, only an evidentiary hearing respondent could determine whether com- mitted such an offense.
One readily respondent can see the dilemma into which has been placed. charged offense, The State him criminally with a sexual then charge respondent withdrew the when demanded trial. The State filed neglect petition offense, the same sexual then withdrew allegation hearing before a held. stipulated Because Valerie uncorroborated, a tangentially allegation, unproven allega related play disposition. tions of sexual abuse still in were for Catholic Charities, noting any responsibility while “has denied 2000,” for the sexual molestation indicated DCFS also characterized as “in responsibility” denial about his in the Apparently, respondent responsibility DCFS case. must take actions that he denies ever occurred and that no one will take the Denying equivalent responsibility proving. being abuse is not the T.B., despite proof in denial In re abuse. Clarence (1991). 85, 104
The law cannot allow a trial court to order such an evaluation unsubstantiated, only upon uncharged, unproved allega- based Furthermore, tions that have been misconstrued as evidence. opportunity demanded a on the merits and an find opportunity. but was denied that We error confront witnesses process rights this violation of the due to confront witnesses and to evidence, require proof by preponderance though at least a even rights children.” If these can be “protect the violation was done to instance, rights must also sacrificed such an all other constitutional be subordinated. argues further that a trial court “need not wait until State
575 removing before emotionally damaged” child is or victimized true, not it does mean While injurious from an environment. child giving him a hear against parent may be taken without actions allegations any unproven to to ing opportunity respond and an As this court require rehabilitation. criminal that would behavior (1979): Baby Butt, App. in 587 Boy noted In re 76 3d only possibilities and dealing here with the future and “We are expose to a probabilities respondent’s To children can be assessed. do. probability something this court will not reasonable abuse hand, possibil free any family in from the On the other child ties ity cannot afford to sever the natural of future abuse we loss of them on parent child and cause that to both between in (Emphasis abused.” possibility the mere that the child BoyButt, original.) Baby In 3d re T.W., A in See case should be decided on the facts evidence. re (2000). Here, given the total lack of facts, of a established there was no basis to warrant order sexual prove al opportunity offender evaluation. State had to these trial, legations molestation, either in a criminal in an of sexual adjudicatory hearing, dispositional question. or at the It did things. presume none of these The court cannot these to be conducting hearing, proven without nor can order offender, light he is especially not a sexual of a presented insubstantial “evidence” sexual offense court. dissenting justice
We claims that a why cannot determine only reviewing investigators sexual offender evaluation will involve reports reinterviewing try hap what witnesses “to uncover pened experience One with court- here.” at 580-81. evaluations, driving- in a they ordered be for alcohol use arising out of sexual under-the-influence case for sexual issues case, abuse knows that such an be done to assess the evaluation would behavior, techniques. subject’s investigative It was State’s State, required undergo the evalua respondent, not the who was tion; possible of the ordered evaluation would be result treatment, specifically trial court being undergo as the required said, having report. not the State write another ordering both before and respondent, trial court erred order, undergo the sexual offender evalua- part dispositional reversed, and the cause is remanded dispositional tion. The order is dispositional hearing. for a new by the trial court erred return-
Respondent also contends that have a new ing custody. K.S. to his Because we ordered hearing, placement the issue of KS.’s again must be addressed in the However, trial in light above, court. our analysis will we address some regarding concerns the “proofs” prior hearing from the original regarding placement. court’s
Pursuant to section 2—22 of the Juvenile Court Act of 1987 (Act) (705 (West 2002)), ILCS once a minor has been 405/2—22 adjudicated neglected, the trial is to if is in court determine the best interests of the minor and public that the minor be made a ward The dispositional court. court is then authorized to enter a custody placement for the or minor. See 705 ILCS 405/ (West 2002). 2—23 in provides part: Section 2—27 Act then
“(1) If the puts writing court determines and in the factual basis supporting guardian, the determination of or parents, legal adjudged custodian of minor or ward the court are unfit unable, are for some reason other than financial circumstances alone, for, protect, to care train discipline or the minor or are so, unwilling health, to and safety, do and best interest jeopardized the minor will be the minor in the remains custodian, or parents, guardian of his her or the court at this hearing any point: and at later i'fi $
(d) Department commit minor Children and Fam- 27(l)(d) ily Services care and 705 service ***.” ILCS 405/2 — (West2002). requirement writing requirement, that the factual be in is a basis (2004). H., not a request. 1024, See In re Madison 347 Ill. 1028 in granted this in guardianship case DCFS of any findings concerning absence written or factual basis respondent’s unfitness, for, inability, unwillingness protect, or to care train, discipline daughter. or his K.S. had been under the temporary hearing. at the guardianship DCFS shelter care At that hearing, probable the court found cause to believe that K.S. was neglected abused, possible sibling her or because of the suffocation of “[r]isk at the of her and harm” hands mother due to “being abuse.” The court indicated for risk sexual found immediate urgent necessity place to remove K.S. from the home and her in jail facility her was in had shelter care mother “prior report indicated of risk of sexual harm.” Reasonable efforts in keep could be made because mother K.S. home her was jail in had “not sexual of [szc] availed himself prior report.” and has indicated [szc] fender treatment only allegations against respondent at the time of the shelter care were the DCFS and his failure to himself of avail he oc- arising denied offender out of incident sexual treatment op- The State had prosecute. the State declined curred party a third showing placement portunity to make a case, through prosecution of either the criminal in this appropriate of evidence allegation through presentation charge or abuse granted trial court hearing. did none of these. The It evidence other guardianship DCFS the absence of continued proven. had been hearsay allegations that never tertiary than old inaccurate discus inexplicably improper relates an The dissent case, this which opinion court’s prior sion of and citation this A supreme 3d at 579. was vacated our court. See Eidel, nullified, canceled, v. judgment People vacated and void. (2001). 496, nothing this App. 3d There from which down, nullity. is a What this court prior opinion can back as entire K.S., said is now relevant as what opinions published. said in draft that were circulated never but Further, material, thought cited to “the this referred process” dissent, specific quotation thought behind a from the not the process that, H. behind the court’s decision in Arthur obvi *10 ously, did a previous opinion not exist when our was filed. Such misleading quotation appellate of a is in an use intolerable disposition.
The dissent further in little dissembles its discourse on “evalua tion” counseling versus “assessment” and the issues of and treat App. ment. See Ill. 365 3d at 580 n.2. The term “assessment” was in quoted contained the Charities the only Catholic that was sentence allegedly Similarly, before our incorrect use of the term. the to “counseling” quotes references and “treatment” from arose direct respondent’s attorney temporary custody from order entered by court, you the do respectively. eyes, yet “You have not see?” Mark, 8:18. care, in parents custody, interest of and control of their is liberty
children one of oldest of the fundamental interests recognized, by protected process and this interest is the due clause. (2002). F., 674, re Kenneth A fit has a App. parent 332 680 superior right superceded only by his child can be a of showing good party. cause in a place custody child third S.S., 3d at 132. While the best interests of child paramount adjudication for of ward petition consideration whenever a (see brought S.S., 126), ship a court must conformity render its actual in with judgment based on evidence and statutory requirements. The trial failed to do that in this case. must concept; The best interests of the child is an isolated be determined the context properly evidence that is before may court. best interests of the require child the court to order present State to evidence to prove allegation, but it cannot require parent a to prove that the allegation is false. 10(2)
Section prohibits the Act the return of minor in a 2— parent shelter care to a “until the placement court finds that such longer necessary protection for the of the minor.” 705 ILCS 405/ (West 2002). 10(2) question We must how the trial court could ever finding a prove make such this case if State attempts never abuse, hearsay allegations allegations of sexual since it was those finding hearing place were basis at the shelter care respondent. ment could not made be The trial court on with offender, he a proving ap burden was not sex parently by undergoing evaluation, placing a sex offender instead of on the State burden proving, preponderance even a evidence, that a respondent posed daughter. sexual threat to his “Cred ible evidence” have been sufficient for the court to find that placement with appropriate at the time of the hearing. However, shelter care flimsy, unproven such evidence cannot indefinitely separate respondent be used to his child. Court- relationship, ordered interference in a on parent-child based such “evidence,” obliga is not the child’s best interests. State has an plead tion if rely these it wants to on them as a for placing guardianship basis than respondent. someone other present Let be burden must there no mistake —the be on the State to Furthermore, plans evidence the first instance. the State to use conduct, parent evidence some be noti parent must notice, fied parent in some manner of the intended use. Without prepare A meaningful response cannot or defense. neglect petition stage process is a vital in the that can therefore,
ultimately lead to parental rights; termination important proceeding. to the fairness of future termination In re (2003). C., Miracle A parent cannot left *11 pursue protect guess to what avenues to in order to this most right. fundamental reasons, County of judgment
For these of the circuit court Lake in part part, is affirmed in the cause is remanded. reversed Affirmed part; in cause remanded. part in reversed HUTCHINSON, J., concurs. part: in dissenting O’MALLEY, part concurring
JUSTICE First, majority has as the majority points. I on two agree with the (K.S., thought process” emphasized, it “cannot fathom 187) Arthur H. adopted supreme court App. 3d at have ordered subsequent in this case. We been to our first decision thought light precisely this of “unfathomable” reconsider case follow, majority’s assess agree process. For the reasons that ment of its abilities. upon is that the agree and I thing majority
The second remain unresolved. allegations against respondent child sex abuse because the allegations remain unresolved point is that the majority’s then, question, charge neglect phase. at the State withdrew the explained allegations. As do about these unresolved sex abuse what to below, obligated majority strongly of the view that the State was neglect pursue charge phase, the sex abuse at the original the State’s failure to position consequence was that the an pursue charges neglect phase required the sex at the abuse custody K.S. child sex awarding alleged from this court did majority abuser. The so order. reasons, unexplained
For from that majority has backed down original position.1 majority opinion The current does not award respondent, custody to but instead remands this cause to investiga court with that the trial not conduct further directions allegations,” i.e., tion “uncharged allegations. into the child sex abuse It does so had the opportunity “[t]he believes State (365 575) allegations” these but instead charge this possibility “foreclosed when dismissed the criminal allegations against” respondent withdrew abuse 574). below, wrong. For reasons that I But detail assume wrong for the moment that the the State was is correct that allegations to assume that it child sex abuse at the could withdraw the neglect with at the phase but those would still dealt dispositional phase. procedural Such an error the State would be a any system expressly I am laws that default. unable fathom recognizes yet paramount that the best interest of the child is would child permit a child to to the sex be condemned (before allegations) consequence as a of a abuser resolution of such awarding custody 1I say majority’s backing down from “unexplained” court ordered us to because the light H., nor reconsider this Arthur and neither that order Arthur case ordering custody propriety H. this reached issue respondent.
procedural by default the State. I am that procedural aware defaults consequences, nothing can lead to only severe but like this. Not would common contrary such result be and decency, sense common but if phrase the “the paramount” best interest the child is means anything, certainly it means it paramount procedural that to a by So, default majority’s law, the State. even under the view of the the (the result it investigate reaches trial court cannot child the sex abuse withdrawn) allegations because they already wrong. have been disagree I majority’s the conclusion the trial court improperly ordered a investigation, evaluation, sex offender or assessm of respondent. my view, ent2 at dispositional phase the the trial court needed to a finding respondent’s make on fitness before it placed awarded guardianship to DCFS and K.S. in the her grandmother. I would remand to the trial court with the direction to so, respondent’s address doing explained fitness. In fully more 21(2) below, I would direct the trial full court make use of section 2— (or thereof) Act, respondent’s cooperation and consider lack 21(2). in any investigation pursuant “Let ordered to section there (365 578), be App. majority placed no mistake” 3d at the has Ill. (365 574) trial and K.S. in App. by a “dilemma” 3d at hold Ill. ing that the trial court wrong sex offender evaluation. majority The dilemma has the trial court in about comes the majority has barred the process evaluation without stat ing is. I in my time, what evaluation As said dissent last all we about know the evaluation what trial court said about it:
“All through the more to follow and reason with this evaluation they say. They reviewing They see will will reports. what be be reviewing recantation, if statement to see there was a whatever is.” situation Obviously, validity the trial court has to determine the of the sex allegations. supposed abuse do the trial court is to do not know what remand, say majority specifically because the does not what the prohibited doing. quote trial court is from As the above from trial indicates, “they” (presumably investigators) going are to review reports try and what happened reinterview witnesses to uncover be, only majority state it 2Not does fail to what views an evaluation (sometimes court) attorneys quoting but to the it also refers (365 App. Ill. attempted action the trial court to undertake as an “evaluation” (365 (365 568), App. 569), “counseling” 3d 3d Ill. at an “assessment” Ill. at (365 577). 569), App. App. majority’s Ill. use 3d at and “treatment” blatantly wrong, “counseling” words and “treatment” are and even undergo treatment or has not claimed he ordered counseling. ruling? Because that under the the trial court do
here. Can defining what term an evaluation without majority bans uses dif- just all it described entails, the trial court do can majority surely cannot ordering? ferent what label find out “whatever to have someone directing the trial court not has is,” but, hand, stated on the other situation “uncharged” allegations. based on evaluation cannot be (365 (365 571), again Ill. App. laments Ill. (365 (365 574), again 571-72), 3d at again 3d at (365 576-77), 575), again again App. 3d at *13 577-78) Thus, charges respondent. against Ill. at the lack of App. 3d hearing a possibility of majority’s position the fundamental is the foreclosed when State regarding allegations the sex abuse sex abuse charge the criminal and withdrew the dismissed (see 574), and, thus, if at an evalu against respondent App. 365 Ill. forward, go dispositional hearing respondent ation and were to would findings him.” way any “against be left to contest unfavorable wrong, This and it the legally factually, is flat-out both contradicts is, words, point its own majority basic of Arthur H. that the unable repetition reliance rather than reasoned fathom. on analysis by repeated regarding the evidenced its observations charges majority withdrawal of certain the fact that the never responds my it H. discussion of how fails followArthur majority neglect stage setting limits on seeing the what during dispositional stage, meaning will be that if an considered allegation neglect stage, proved respondent was not as to at the then dispositional orders at cannot form the basis for the trial court’s stage. possibility “[t]he [the states that State foreclosed allegations] charge of on the when it dismissed criminal (365 574), allegations” and withdrew the abuse al majority concludes from that that the substance of withdrawn legations determining cannot form a for basis (2001), C.N., 181 custody. fit to have But Arthur H. and In re 196 Ill. 2d charges make against respondent it clear that the fact that the were ruling or at the time of at brought withdrawn never court’s stage. The phase consequence dispositional is of no at the neglect any charging sees a need for formal document as a basis for stage, such as would be investigations dispositional orders or at the proceeding. in a the case criminal charges against
Though majority complains a lack of formal of point statutory provision or case law respondent, does not analogous to a criminal indicating requires anything the Act at complaint making charge a formal 582
dispositional stage.
charges
case,
Unlike
in a criminal
complaint
or the
case,
in a typical
charges
civil
neglect stage
at the
not shape
do
everything
fact,
In
purpose
neglect phase
follows.
quite
stage.
different from that
the dispositional
After a child is
found
neglected,
to be
the proceeding
dispositional
moves to the
stage,
where the trial court is to determine what
is in
course
action
(Arthur H.,
child’s best
464),
interests
212 Ill. 2d at
but
(In
guilt
determine the
or
R.B.,
innocence of a
re
336 Ill.
(2003)).
606,
App. 3d
614
This determination of the child’s best
depend
interests does not
charges
neglect
formal
in the
peti
Quite specifically
tion.
contrary,
to the
our supreme court has held
even an issue was
neglect petition,
in the
it can still
be a
for
plan
dispositional
C.N.,
basis
a service
or
order.
supreme court may that into information scope any investigation an of broad However, exactly such majority relies helpful be to court. being deprived reaching its view that requirement (365 577), the trial here “right custody” to his (365 Ill. “uncharged” allegation investigation into an court ordered an 574). holding flatly at odds with the Such view this, respond to Notably, H. does not even Arthur and over analysis. simply repeats It over alone reasoned let offer charges or dismissed. that certain were withdrawn wisely aptly observed: As the trial court or criminal case was dismissed “The issue is not whether the *** I even know why idea it was dismissed. don’t not. I have no now is one complaining it But the issue was the same witness. That says [respondent] sexually molested her. children through All more follow this not be reason to true. they say. They reviewing the and see what will be evaluation reviewing if there was a reports. They the statement see will recantation, I is. don’t know from what whatever the situation can see here.”
So, trial “charges question confronting charges,” or al- regard court was to do with the unresolved child sex abuse what view, decided, my trial to take the legations. again wisely court deciding steps necessary to resolve those before alleged abuser child sex should have K.S. noted, discretionary power to order an As trial court had the abuse, investigation scope” into the sex under the “broad 214) (C.N., under section investigatory powers of its 21(2) 2000)). 21(2) (705 (West Given of the Act ILCS 405/2 — otherwise, presented, hearsay there was evidence offense, trial sex it abuse of discretion committed a an placing custody of K.S. with investigation order further before point “[t]he states that respondent. misses the when parent reason’ to order a ‘[a]ll absence of evidence is more possible counseling.” submit to a sexual evaluation and offender to sex abuse counsel (Although majority 3d at 573. refers 573), in its at no time ing opinion App. 3d at course, require counseling.) paradoxical ordered sex abuse Of proof it can order the trial court have of sex abuse before proof investigation Obviously, of sex abuse. it makes no sense make *15 ordering purpose of which is to prerequisite investigation, an the Boy re Baby there The cites In proof. determine whether Butt, (1979), an order based on App. premise 76 Ill. 3d 587 for the
possible sex Butt, abuse is App. however, error. 365 Ill. 3d at 575. dealt proof necessary place a child in the guardianship DCFS, necessary the amount evidence to order an investigation under 21(2). Butt, section 76 Ill. at 594. There is a wide chasm 2— issues, between these two inapplicable. and Butt hearsay evidence that one siblings of K.S.’s and K.S.’s cousin accused sexually molesting enough them was justify an 21(2). investigation under question section The real is whether the sex offender (C.N., evaluation fits within the scope” “broad 196 Ill. 2d 214) at of the investigatory powers granted to trial court under 21(2). section 2— cites Lyon authority for its conclusion that the
trial court had no basis to order
sex
evaluation,
Lyon
offender
but
inapposite to the case
hand.
Lyon,
plaintiff,
an accused sex
offender, sought to
his
expunged
have
name
from a sex offender
registry. Lyon,
with until the trial court *** if finding could ever make such a wondering the trial court “how *** attempts allegations.” the State never to the Thus, majority dropping believes that the State’s both the the charge against neglect criminal count based on event,4 obeying Act in the same combined with the trial court’s the allegations respondent, place trying investigate to the “readily “respondent in “dilemma” see[n]” wherein responsibility must take for actions that he denies ever occurred no 3d at 574. responsibility proving.” one will take the that, On the is seen is as the contrary, readily what case, proclaimed original opinion in this it remains unable to its process legislature fathom the court and the have Specifically, the does not set forth for these matters. relationship adjudication neglect understand the the between Again, pursued the not have proceedings the that follow it. State need for them any charges allegations related to the sex abuse order to hearing. disposi the purpose be relevant at the ensure respondent’s guilt, tional determine but to to investigate to placement. duty-bound KS.’s safe The trial court that, stipulation as to obviously, 4I once the had obtained note State counts, unnecessary pursue completely for to neglect on one of the adjudicated neglect, neglect each of the other counts of State, Thus, as parent. and not as to each it stands reason that minor during explore suming abuse trial court could neglect petition dispositional stage, dropped remaining once counts its stipulation neglect. it obtained Valerie’s
charges against respondent, not, whether he denies them or whether the prosecutes State them or sought not. Even if the State 21(2) allegations, abandon the sex abuse Act, under section 2— 214) trial (C.N., court has the “broad” Ill. 2d at authority *** an investigation “any into helpful information 21(2) (West 2000). to the court.” 705 ILCS It employ must its 405/2— authority investigate, because a child can removed shelter care be returned to his or her parents only after “the court finds that such placement longer necessary protection of the minor” (West 10(2) 2002)). ILCS The only “dilemma” here is the one 405/2 — majority places trial court preempting K.S. an evalu knowing ation without even what evaluation would entail. Moreover, foregoing majority’s question answers the of how 21(2) finding court could pursuant make to section (or not) place it is safe respondent. But the *17 rhetoric highlights shortcomings the its reasoning. majority The 21(2) dispute does not specific that section requires finding that “placement longer necessary safety the the minor.” I find extraordinary it majority disregard sees fit to a specific such mandate, statutory by a reasoned analysis of the statute’s constitutionality, by but instead claiming respondent that been has placed in again, majority a “dilemma.” Once the uses rhetoric and hyperbole thoughtful rather analysis. than But it is court’s prerogative express by using phrases disdain for statute such as “dilemma” simply then refuse it. Claiming to follow that respondent has hardly been a “dilemma” is a substitute for analysis an of a constitutionality. statute’s itself, point
On the of the evaluation the majority states “[cjompletion of respon the evaluation would not establish whether sexually dent App. molested T.V.” 365 Ill. 3d at I do not majority understand how the is so sure what the evaluation or would Again, majority would not establish. the never it states what envisions simply the evaluation would entail —it holds that an evaluation cannot be done. conducting When the bars the trial court from an evaluation, it essentially tells the trial court not to find out has what happened in and not this case to find out if there are credible recanta allegations tions. The barrier to the determination truth the court, then, is not or the respondent, the State the but majority. majority’s regarding respondent’s rights, The assertions allowing its dramatic averment “all evaluation would cause (365 rights Ill. 3d at App. [to] other constitutional be subordinated” 574), completely respondent miss the mark. It is not unreasonable that participate investigation, given unique should be asked to in the juvenile proceedings. nature of would entail it the evaluation discussing what envisions
Instead of of the trial scope” the “broad fits within and whether that evaluation 21(2) majority quotes powers, investigatory court’s section 2— each of the trial chiding by emphasizing it explanation, trial court’s App. it did not know. See 365 acknowledgments of what court’s abdications; were hardly they acknowledgments were at 573. These investigated will be things contemplates the Act exactly the sorts of 21(2). it trial court never said that pursuant The to section 2— generated by the automatically adopt report evalua intended to challenging process respondent prohibited tion would be from charge that the trial dispositional hearing. it at on offender evaluation to “attempted rely court the sexual (365 Ill. guilty sexual offenses” 574) by the trial court’s App. 3d at is unfounded contradicted clearly indicated that it pronouncements, wherein the trial court would allegations veracity until not form a conclusion as hearing. dispositional heard all the relevant evidence at and the evaluation were assist dispositional report sex offender hearing. It is to accuse the trial court offensive abdicating proceedings its authorized role when orders it, just imply Act as it the trial to assist is inaccurate (see hearing denied demand for a *** (“respondent demanded a merits but opportunity”)). attempted denied that The trial court to conduct hearing, the trial order instead appeal but chose court’s of comply with it. investiga
Regarding the basis for the trial court’s what view as against respondent, tion into the abuse sex allegations against respondent characterizes the DCFS (365 571) “old, hearsay” tertiary as “rank 3d at *** 574). minimally reports” substantiated *18 hearsay of evidence is majority’s perplexing. statements are Use 22(1) 18(4)(c), Act. specifically by authorized 705 ILCS 2— 405/2— (West 2000). “tertiary” hearsay evidence was Whether question that the two children point. Respondent misses the does children lied. but, rather, of maintains that the accused him sex abuse i.e., Thus, report, factual content of the Catholic Charities whether them, sexually respondent abused or not the two children said which report, The record that the DCFS was never at issue. shows based, parties. to the report was distributed the Catholic Charities was “tertiary” case, In this there was no functional difference between authorizes specifically the Act hearsay simple hearsay, being of it hearsay without limitation on the basis consideration of (West 2000). 22(1) 18(4)(c), “tertiary.” 705 ILCS 2— 405/2 — The majority’s assertion that the use hearsay precludes of evidence (see respondent from challenging the of charges against truth him 574) Ill. App. 3d at ais monumental overstatement. It is true that of hearsay prevents respondent’s use evidence of cross-examination However, compensated witness. this handicap by for the fact hearsay evidence is accorded weight. lesser 705 ILCS 405/2— 18(4)(c) (West 2000). Although respondent did not avail himself of this opportunity,5 hearsay prevent evidence did not him putting from on a defense at the attempting to discredit both accuser Importantly, accusation. the stipulated testimony hearsay being evidence are not used undergo to force sex of or, matter, fender treatment for that as a for finding basis an unfitness under They section 2—27. are being used as a find basis to more 21(2). pursuant information my view, to section purpose this 2— properly weight commensurate with the lower accorded to hearsay again majority expresses evidence. Once law, its disdain for the holding? but what is the majority does not state that it 18(4)(c) found has section again, unconstitutional. Once it is not any prerogative express court’s displeasure legislative with a enact disregard ment and doing then it without for other basis so. The majority’s statement trial rely “attempted on the sexual offender evaluation to was 574) guilty” Ill. App. many 3d at is but one statements the majority recites that make it proceedings sound as below were However, outrageous. further examination fol reveals that all lowing simply hyperbole: statements are *** “A finding a DCFS worker does not obviate the need for the produce
State to evidence of judge offenses and to find ***that an offense was committed.” Again, at 572. case, this is not a criminal already adjudicated K.S. has been neglected.
“[T]he court dispositional ordered evaluation before the even was created.” 365 Ill. course did. The Of help purpose judge the evaluation was to the trial determine what order would be K.S. ’s best interests. complete “[T]he lack of evidence leads us to [improper].” conclude that the court’s actions were “complete 571. The assertion lack points brief, respondent object 5As the State out in its “did not to the presentation case], presented [as in this did evidence not demand witnesses, object opportunity to cross-examine nor did he when the trial judge presented indicated there would be no direct evidence adjudication neglect being stipulated to.” *19 the “limited regarding discussion by its extended
evidence” is belied 572) (365 “credible evidence” 3d App. Ill. value” of and nonexistent. be both weak respondent. Evidence cannot determined, authority pursuant has of “We are unaware App. 365 Ill. so utilized.” evaluation be Frye, that such an to be say would that the evaluation trial court did not 574. The 3d at evidence about Frye or adduced party no has raised so utilized and fact, we In do standing a sex evaluation. the scientific offender of Thus, there is will entail. exactly the evaluation know what even this statement. no basis for op hearing the merits and an on “[Rjespondent demanded opportunity” denied that witnesses but was portunity to confront (365 574), process rights to “[i]f [due these App. Ill. 3d at instance, all other can sacrificed in such an witnesses] confront (365 App. rights Ill. must also be subordinated” constitutional 574). hearing, respondent object to At did adjudicatory witnesses, opportunity an to did not demand presentation of witnesses, to objections indicated no cross-examine stipulated neglect propose remand to the trial court so finding. hearing respondent’s that the trial court can determine conduct K.S., fully will be allowed to to care fitness participate hearing. in that court], “Here, given [before facts the total lack established evalu there was no to warrant the order of a sexual offender basis allegations ***, opportunity prove these ation. State had the trial, adjudicatory hearing, at the criminal in an either things.” dispositional hearing question. It did none these here, Again, charges necessary were App. Ill. 3d at 575. protect ’s purpose dispositional hearing was to K.S. best interests, prosecute respondent. not to presume allegations proven to be without “The court cannot these Nothing App. Ill. at 575. like conducting a ***.” 365 expressly happened. fact, it did not know the court stated investigation an to be were true ordered hearing. done before that he is not a prove “[The cannot] trial court ***” 575) (365 original) App. 3d at (emphasis sexual offender proving the burden of “[t]he trial court original) (emphasis he not a offender” that was sex 578). outrageous the trial It would have been as sounds if things. equally It had these It did neither. done either outrageous falsely accuse the trial court such conduct. attempted] hearsay allegations “[T]he State never precise 3d at 578. That was the sexual abuse ***.” investigation ordered. purpose “A parent to guess pursue cannot be left what avenues to in order protect right [his to custody].” 3d at 578. Notice has never been issue in this case. misstatements, above though, comprise only portion
majority’s In my histrionics. dissent from the original *20 opinion, I pointed out that the (K.S., decision was an “enthusiastic” J., 343 Ill. 3d App. (O’Malley, at 189 dissenting)) repudiation of the See, K.S., best interests of the child standard. e.g., App. 343 Ill. 3d at (“The Chamber, 184 alia, placed Star premium inter a on compelling subjects investigation of guilt admit from their lips”). own Once again, majority the repudiates K.S.’s great best interests with (“noxious panache. enthusiasm and See 365 Ill. 3d App. at 573 cloud ”); (“the App. ‘credible evidence’ 365 3d at 573 trial court abdicated finder”); (“old, its role fact Ill. App. 365 3d at 574 minimally substantiated, reports”); thirdhand App. 365 Ill. at (“[o]ne can readily see the dilemma into which has been (“[t]he placed”); App. 3d at 574 law cannot a allow trial court to order such an only upon evaluation based uncharged, unsubstanti ated, unproved and allegations that have been misconstrued as (“[i]f evidence”); 365 Ill. 3d at 574 rights these can be sacrificed *** all other rights subordinated”); constitutional must also 365 Ill. (“[l]et mistake”). App. 3d at 578 there be no misapprehensions, Aside from the above-mentioned misstate- ments, histrionics, majority, above, the as noted on relies also repetition emphasis rather than analysis. on reasoned For majority example, repeats the several charges times the sex abuse against respondent were withdrawn or unproven, responds but it never my neglect phase observation that the does not frame the issues to follow as in charging would a instrument a criminal a case or complaint in a civil case.6 engaging analysis regarding Instead of in neglect phase, the function of the majority simply repeats again the again, again, the sex abuse count was withdrawn the neglect phase. I give above example another the use emphasis place reasoning, quote quot- the the majority’s where ing emphasizing every the trial court and instance which trial judge phrase “I used a such as have no idea” or “I don’t know.” majority addressing my
6The closest the comes to observation is at the opinion, of its “[a] conclusion where it states on a neglect petition process.” stage vital in the 578. However, majority proclamation paragraph couches this within a that as adjudication negligence parent sumes that the should serve as notice majority dispositional hearing. simply the issues to be addressed in Thus the perpetuates error. its trial court’s
However, to take the using emphasis try from aside analysis to no context, majority offers reasoned out of statements trial court was in error. explain why “ that, ‘[a]rgu saying brief as majority quotes also the State’s sex Respondent was a ***, assumed that the ably the trial court of *** evaluation, course it had no other without related fender ” (Emphasis of K.S.’ interests of action consistent with best again emphasizes once original.) no statement, statement leaves the context of the State’s part of but that, point making rather State obvious simply doubt that the protect K.S. if the trial court orders a sex offender evaluation comply, option trial is left with respondent refuses to respondent custody. Actually, protect other than to disallow K.S. assumption, but grounded not on trial court’s lack recourse is comply fact refused to uncontroverted order, i.e., as with participate the evaluation. Just court’s safety plan, respondent unilaterally disregard child cannot course, ap he can and did consequence. trial court’s orders without Of this peal issue. notes that “the noxious cloud ‘credible evidence’ *21 years.”
has now for than hovered over more six case, App. 3d I time in this agree passage at 573. of concern, but, involving custody, great case is a of child matter obviously, huge percentage delay in this case is a result of us, original mistake first time case was before Now, remand, requiring supreme get is court review. ting wrong again, requiring yet thus another review Moreover, majority’s regarding respon court. the fate statement of its of be As telling approach dent of view what our should here. above, proceeding against respondent, observed this is not a criminal law, that, and, applicable here for same tragic under the what years, hung system fate has six of K.S. the balance while custody. has failed make a final determination of child procedural posture presents significant case current this gave guardian- issue. The trial court entered a her ship custody her in the maternal K.S. to DCFS 27, however, grandmother. requires that before the Section 2— action, “the take such it must make a determination that adjudged parents, guardian, legal [the] or custodian minor ward unable, than are unfit or some reason other are for for, discipline or alone, protect, financial circumstances to care train health, so, safety, and that the unwilling the minor or are do jeopardized of the minor will the minor remains best interest parents, guardian his her or custodian.” 705 ILCS 27(1) (West 2000). The finding. trial court made such 405/2 — The matter should be remanded so that the trial court can conduct a hearing respondent’s determine ability fitness and care K.S. The trial court should have reports generated available the aas result investigations evaluations or conducted pursuant to section 21(2). Obviously respondent may participate hearing. such a Consequently, wrong position by when defends its complaining that, otherwise, against respondent actions will be taken without the opportunity respond allegations. to the ILLINOIS, THE PEOPLE Plaintiff-Appellee, OF THE STATE OF v. BENNIE STARKS,Defendant-Appellant.
Second District No. 2 — 04—0671 Opinion Rehearing July 14, filed March denied 2006.