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06/22/95 C.J. v. C.J.

June 22, 1995


The Honorable Justice Freeman delivered the opinion of the court: Justice Harrison, dissenting:

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

The State appeals from an order of the juvenile division of the circuit court of Cook County dismissing its petition for adjudication of wardship of respondent, C.J.


The Department of Children and Family Services (DCFS) received and investigated a report of alleged child abuse involving C.J. The report alleged that C.J. had performed an act of digital penetration on his three-year-old cousin.

On the basis of the DCFS report, the State filed a petition for adjudication of wardship of C.J. The petitionalleged that on or about May, 4, 1991, C.J., who was 12 years old at the time, committed the offense of aggravated criminal sexual assault on his three-year-old cousin. The State sought to have C.J. adjudicated a delinquent minor and moved the court to permit the introduction of "outcry testimony" of the minor victim. See Ill. Rev. Stat. 1991, ch. 38, par. 115-10.

In its motion, the State specifically alleged that on May 8, 1991, the alleged victim stated to her mother that she did not want to visit her aunt's home. When asked why, the victim stated that the last time she visited, C.J. took her into a closet and sexually assaulted her. When asked if this had ever happened before, the victim stated that it had happened the last time C.J. spent the night, May 4, 1991.

In the interim, DCFS mailed C.J.'s parents a letter advising that the report of suspected abuse had been "unfounded." The letter also stated that an "unfounded" determination means that credible evidence of child abuse or neglect has not been found. Further, the letter stated that if the respondent believed the report had been filed against him falsely, he could make a written request, within 10 days, that the report be retained in the DCFS files.

C.J., on four separate occasions, subpoenaed records from the Division of Child Protective Services (Division) concerning the "unfounded" report. The Division, however, failed to respond.

On February 3, 1992, C.J. moved the court to order the State to produce "all records, reports, notes or other information regarding an Unfounded Illinois Department of Children and Family Services investigation." The court granted C.J.'s motion; the State, however, produced no records with respect to the investigation. Additional motions were filed to compel the production of the DCFS records; however, none were produced.

Finally, on February 14, 1992, Shirley Burton, an employee of the Division, appeared in court, represented by counsel, Marilyn Woods. Attorney Woods informed the court that DCFS failed to discover any report on C.J.'s case. Therefore, according to Woods, Burton had determined that the report against C.J. had been unfounded. Also, according to Woods, Burton contacted the agency's Springfield office and was informed that the allegations against C.J. were unfounded. After checking the Division's files, Burton opined that the agency's records had been expunged.

Woods further explained to the court that, unless retention of an unfounded report of child abuse is expressly requested by the alleged abuser, such report is routinely expunged. Woods informed the court that, according to C.J.'s attorney, C.J.'s mother had requested that the report be retained. However, there was nothing to indicate whether the request had been received by DCFS. We note that other than Woods' statement, there is nothing in the record to indicate that C.J. requested retention of the report.

C.J. advised the court that he had spoken with the DCFS caseworker who had investigated the report; however, the worker had no independent recollection of the case without her case notes. C.J. did, however, have the letter from DCFS stating that the report of alleged abuse was "unfounded."

The court indicated that without the investigator's notes, reports, or file, the court could make no determination concerning the significance of the "unfounded" finding.

On April 8, 1992, as a sanction for the State's failure to comply with discovery, C.J. moved the court to dismiss the State's petition. In support of his motion, C.J. argued that the undisclosed records were exculpatory, and that he could not effectively cross-examine thechild victim without her prior inconsistent statement, allegedly contained in the report.

In his written motion, C.J. asserted that DCFS is an agency of the State of Illinois and acts as an investigatory agency for the Cook County State's Attorney. Because the State assumed responsibility over the acts of its "agent," the DCFS's loss of the "exculpatory" evidence was imputable to the State. ...

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