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In re K.S.

August 27, 2003


[6] Appeal from the Circuit Court of Lake County. No. 02-JA-14 Honorable Valerie Boettle Ceckowski, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice McLAREN

[8] Respondent, Kevin S., appeals from the trial court's adjudication of neglect and the dispositional order in the neglect proceedings regarding his daughter, K.S. We reverse.

[9] On January 16, 2002, the State filed a three-count petition for adjudication of wardship and temporary custody of K.S. Counts I and II, alleging neglect and abuse, respectively, related to K.S.'s mother, Valerie C., and her alleged role in the murder of K.S.'s sibling, Baby Boy C., on January 13. Count III alleged that K.S. was an abused minor in that respondent, the paramour of K.S.'s mother, committed a sex offense against T.V., another sibling of K.S., by attempting to place T.V.'s hand on his penis. The trial court found an immediate and urgent necessity to remove K.S. from the home and place her in a shelter care facility and granted temporary guardianship to the Department of Children and Family Services (DCFS).

[10]  On April 11, the State withdrew counts I, II, and III and filed an additional count IV, alleging that K.S. was neglected in that her mother failed to protect her by failing to follow the safety plan of DCFS. Valerie C. stipulated to a factual basis for count IV and that the evidence would prove that K.S. was neglected. The State represented that, if called, DCFS caseworker Evelyn Martinez would testify that she was involved in the investigation of the alleged sexual abuse of T.V. On June 12, 2000, she discussed the safety plan with Valerie and told her that respondent could not have contact with any of her children and could not live in their house. On October 25, 2000, she told Valerie that she was going to recommend that the case be indicated and reiterated that the safety plan was still in effect. Some time after that, Martinez learned that respondent had been living in the house with Valerie and her children. The court was also told that the criminal case against respondent, which arose from the allegation that he had sexually molested T.V., had been dismissed in January 2000.

[11]  The court found K.S. neglected based upon "the factual basis as presented and agreed upon by Ms. Hayward [Valerie's attorney] and her client and the State." The court then ordered a social history investigation and ordered respondent to undergo a sexual offender's evaluation. Respondent, through his counsel, stated as follows:

[12]  "Just so it is clear on the record, my client is not admitting or stipulating to anything. My client's criminal case was dismissed. In talking with my client[,] I don't feel as his advocate that that sex offender evaluation is necessary because that charge was dismissed, and he has adamantly denied it from day one.

[13]  I want the record to show that he doesn't want the child to be adjudicated neglected, and that the criminal case has already been disposed of. He was already incarcerated for that. The case was dismissed. And we don't feel that it is appropriate."

[14]  The trial court responded that respondent "absolutely can persist in his denial, but the evaluation is going to be ordered. *** I am going to order that you follow through with that because I have to make sure that [K.S.] is safe."

[15]  On June 28, 2002, the case proceeded to a dispositional hearing. The social history investigation, prepared by Catholic Charities, stated that DCFS had become involved with the family when T.V. and her cousin reported that respondent "had fondled them and sexually molested them." However, the case was closed when Valerie "agreed to a safety plan, and reported that she would not allow any contact between her children" and respondent. According to the report, respondent stated that "the girls lied about the incidents," and he "has denied any responsibility for the sexual molestation report that was indicated by DCFS in 2000." Catholic Charities concluded that such denial "may indicate that [respondent] does not fully understand the children's needs" and further characterized respondent as "in denial about his responsibility" in the DCFS case. Respondent was "reluctant to comply with services" regarding the sexual molestation charge. The report did note that respondent's only criminal conviction was of deceptive practices. However, the report concluded that respondent "needs to acknowledge his role in the previous DCFS allegation of sexual molestation, which was indicated. He needs to complete a sexual offenders assessment, and follow all recommendations of the assessment." At the dispositional hearing, respondent continued to deny any wrongdoing and asked that he not be ordered to complete sexual offender assessment and counseling.

[16]  The trial court found K.S. to be a neglected minor, made her a ward of the court, and gave legal guardianship to DCFS. Addressing respondent, the court stated:

[17]  "Okay. Here is the situation, and just so you understand, Mr. [S.], I have to look at what is in the best interest of the children.

[18]  The issue is not whether the criminal case was dismissed or not. I have no idea why it was dismissed. I have no doubt that it was. I don't even know if it was the same complaining witness. But the issue now is that one of the children says that you sexually molested her. That may not be true. All the more reason to follow through with this evaluation and see what they say. They will be reviewing the reports. They will be reviewing the statement to see if there was a recantation, whatever the situation is. I don't know from what I can see here. But what I can tell you, there is a founded report. There was a statement made by one of the girls. And that you are the father of a young girl, and that I have to make sure that she is protected. So I am going to order the sexual offender evaluation within the next 30 days."

[19]  Respondent filed a motion to reconsider, which was denied by the trial court. This appeal followed.

[20]  Respondent first contends that the trial court erred in ordering him to complete a sexual offender evaluation and follow the resulting recommendations. The conditions of a dispositional order must have some basis in the evidence. In re Chyna B., 331 Ill. App. 3d 591, 597-98 (2002). On review, a trial court's dispositional determination will be reversed only if the court's findings of fact are against the manifest weight of the evidence or if the court committed an abuse of discretion by selecting an inappropriate dispositional order. In re J.P., 331 Ill. App. 3d 220, 238 (2002).

[21]  The complete lack of evidence against respondent in this case leads us to conclude that the trial court's dispositional order was both an abuse of discretion and against the manifest weight of the evidence. The court heard nothing except rank tertiary hearsay regarding the allegations of a sexual offense committed by respondent. At the time that the court found count IV to be proved, it had heard nothing except what Valerie stipulated that DCFS caseworker Martinez would testify to if she were called to testify. In that stipulation, it was stated that Martinez would testify that she was involved in an investigation of the allegation that respondent molested T.V. and that DCFS's "safety plan" prohibited respondent's presence in Valerie's house. It was the violation of this safety plan that formed the basis of the court's finding of neglect. However, the court also heard that the criminal case against respondent, which arose from the same allegations of sexual molestation, was dismissed, as was count III of the petition in this case, which was based on the same allegations. The Catholic Charities report included the statement that the DCFS report regarding the molestation allegations was "indicated." However, respondent consistently denied the allegations, and the Catholic Charities report noted this fact.

[22]  The trial court never heard any direct evidence that respondent had committed any sexual offense; the evidence was only a stipulation by a third party, the mother, and a report about a report containing such allegations. While the DCFS report was "indicated," such a designation means only that "credible evidence" of abuse or neglect has been found by DCFS. See S.W. v. Department of Children & Family Services, 276 Ill. App. 3d 672, 674 (1995). On the other hand, the court knew that the State had dismissed the criminal charges against respondent and withdrawn the abuse allegations based on that same incident, and that respondent had always denied the allegations. At an adjudicatory hearing, the State must prove allegations of neglect by a preponderance of the evidence. In re S.S., 313 Ill. App. 3d 121, 126 (2000). Reference to a DCFS report of "credible evidence" was an insufficient basis for ordering respondent to undergo a sexual offender evaluation. "Credible evidence" is a term of art; labeling evidence as credible in no way denotes that the evidence comports with rules of evidence or procedural due process. The dissent accords this "credible evidence" too much gravity. A finding by a DCFS worker, as capable as the worker may be, does not obviate the need for the State to prosecute an alleged offense and a judge to find that an offense was committed.

[23]  The trial court in this case abdicated its role as fact finder, as is evidenced by its explanation of its order to respondent:

[24]  "The issue is not whether the criminal case was dismissed or not. I have no idea why it was dismissed. I have no doubt that it was. I don't even know if it was the same complaining witness. But the issue now is that one of the children says that you sexually molested her. That may not be true. All the more reason to follow through with this evaluation and see what they say." (Emphases added.)

[25]  The State attempts to bolster that explanation with the following argument:

[26]  "Arguably, in the instant matter, the trial court assumed that the Respondent was a sex offender who posed harm to K.S. because without a related evaluation, it had no other course of action consistent with the best interests of K.S." (Emphasis added.)

[27]  We note that if count III had not been withdrawn, an adjudicatory hearing would have been a proper and acceptable course of action to determine if respondent was a sex offender. Be that as it may, trial courts are to base decisions on evidence, not assumptions. The absence of evidence is not "[a]ll the more reason" to order a parent to submit to a sexual offender evaluation and possible counseling. Respondent was never given a hearing at which witnesses testified, with the opportunity to cross-examine witnesses and present his own evidence. The State foreclosed this possibility when it dismissed the criminal charges and withdrew the abuse allegations against respondent in count III. Instead, the court ordered the evaluation without any evidence closer than third-hand reports, and it relied on the sexual offender evaluation to prove whether respondent was guilty of the claimed sexual offenses.

[28]  In addition to the trial court's error of ordering the evaluation at all, we must point out the fallacy of the court's reasoning. We are unaware of any authority that has determined, pursuant to Frye, that such an evaluation may be so utilized. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Completion of the evaluation would not establish whether respondent sexually molested T.V. Respondent denied the allegation. In the absence of an admission or stipulation by respondent, only an evidentiary hearing could determine that respondent committed such an offense. If this court were to allow the trial court to order such an evaluation without the benefit of evidence, one shudders to consider what other mischief could occur if uncharged, unsubstantiated, and unproved allegations are mistaken for evidence at either the adjudicatory or the dispositional stage of the proceedings, especially when the party condemned demands a hearing on the merits and is denied that opportunity. The dissent finds this "demeaning" and sees the trial court's actions as nothing "other than trying to reach the right result in this case." Slip op. at 41-42. This opinion is not an ad hominem attack on the trial court; however, we do find both error and mischief in the violation of due process rights to confront witnesses and to require proof by at least a preponderance of the evidence, even when it is done to "protect children." If these rights can be sacrificed in such an instance, all other constitutional rights must also be vulnerable.

[29]  The dissent reveals the crux of the matter when it describes this case as "gut wrenching" because of the "possible sex abuse" involved. See slip op. at 42. "Possible" sex abuse, though not alleged in the neglect petition; "possible" sex abuse, though not proved, either through a criminal trial or an adjudicatory hearing; "possible" sex abuse raised only through tertiary hearsay. "Possible" does not rise to the level of proof necessary to order a man to undergo an evaluation and possible counseling for sexual abuse. Such an order based on "possible" acts is patent error. As this court noted in an appeal by one parent from an adjudication of neglect:

[30]  "We are dealing here with the future and only possibilities and probabilities can be assessed. To expose respondent's children to a reasonable probability of abuse is something this court will not do. On the other hand, no child in any family is free from the possibility of future abuse and we cannot afford to sever the natural ties between parent and child and cause that loss to both of them on the mere possibility that the child may be abused." (Emphasis in original.) In re Baby Boy Butt, 76 Ill. App. 3d 587, 594 (1979).

[31]  The potential for further mischief can be found in the dissent's interpretation and application of section 2--21(2) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2--21(2) (West 2000)). The dissent argues that the "broad scope" of section 2--21(2) gave the trial court discretionary power to "order an investigation into the alleged sex abuse." Slip op. at 35. Apparently, the dissent sees no limit to the size of the net the trial court may cast to find information, as it would allow unreliable, tertiary hearsay to preclude respondent from determining the truth of the charges brought by a nonparty. The dissent finds this to be a "monumental overstatement," arguing that the use of hearsay evidence did not prevent respondent from "attempting to discredit both accuser and accusation." Slip op. at 40. How is respondent to "discredit" his accuser and the accusation when there never was a hearing at which respondent's accuser testified and was subject to cross-examination? Respondent's accuser never testified at his criminal trial because the charges were dropped. His accuser did not testify at the adjudicatory hearing, where no witnesses were called to testify, nor did she testify at the dispositional hearing. We are also stunned by the dissent's statement that respondent was not prevented "from putting on a defense at the hearing." Slip op. at 40. We first note that he was not charged with anything by the State at the time of the hearing; the court cannot make up charges as it goes along. Secondly, how was respondent to prove a negative, i.e., that no sexual abuse occurred, especially when his accuser never testified and was never present for cross-examination? The Star Chamber, inter alia, placed a premium on compelling subjects of investigation to admit guilt from their own lips. See People v Baker, 123 Ill. 2d 233, 239 (1988). Unfortunately, that attribute is present in this case.

[32]  The State further argues that a trial court "need not wait until the child is victimized or emotionally damaged" before removing a child from an injurious environment. While true, it does not mean that actions may be taken against a parent without giving him a hearing and an opportunity to respond to any allegations that would require rehabilitation for allegedly criminal behavior. A case should be decided on the facts in evidence. See In re T.W., 313 Ill. App. 3d 890, 892 (2000). Here, the "facts" before the court were insufficient to warrant the order of a sexual offender evaluation. The State had the opportunity to prove these allegations of sexual molestation, either in a criminal trial, in an adjudicatory hearing, or at the dispositional hearing in question. It did none of these things. The court cannot presume these allegations ...

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