In re Ivan H. , 238 Ill. 2d 430 ( 2010 )

Docket No. 107002.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re I.H. et al., Minors (The People of the State of Illinois,
Appellant, v. Jacqueline M., Appellee).
Opinion filed October 21, 2010.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Thomas, Kilbride, Garman,
and Karmeier concurred in the judgment and opinion.
Justice Freeman dissented, with opinion.
OPINION
Section 2–18(4)(c) of the Juvenile Court Act of 1987 requires
corroboration and cross-examination of a minor’s previous statements
relating to allegations of abuse or neglect. 705 ILCS 405/2–18(4)(c)
(West 2006). At issue in this appeal is whether this provision applies
to temporary custody hearings.1 The appellate court determined that
1
For purposes of this appeal, the term “temporary custody hearing” is
synonymous with the term “shelter care hearing.” Because the Act identifies
this proceeding as a temporary custody hearing (705 ILCS 405/2–10 (West
2006)), we use that term here.
it does and ultimately reversed the trial court’s adjudication of neglect,
concluding it was against the manifest weight of the evidence. 382 Ill.
App. 3d 1093, 1102.
We reject the appellate court’s conclusion that section 2–18(4)(c)
of the Act applies to temporary custody hearings. However, we affirm
the judgment of the appellate court on other grounds.
BACKGROUND
Respondent Jacqueline M. is the mother of the minors I.H. and
M.H. In September 2006, the minors’ maternal grandmother brought
four-year-old M.H. to the Mundelein police department to report that
Jorge G., Jacqueline’s live-in boyfriend, had sexually abused M.H.
Law enforcement officials reported M.H.’s allegations to the
telephone hotline of the Department of Children and Family Services
(DCFS). Three days later, DCFS took the minors into temporary
custody.
The State filed petitions for adjudication of wardship as to both
minors alleging that the minors were neglected because they had been
exposed to an injurious environment (705 ILCS 405/2–3(1)(b) (West
2006)) and that they were abused because they faced a substantial risk
of physical injury (705 ILCS 405/2–3(2)(ii) (West 2006)). The
petition related to M.H. additionally alleged that she was abused
because she had been physically injured (705 ILCS 405/2–3(2)(i)
(West 2006)) and because her mother had allowed a sex offense to be
committed against her (705 ILCS 405/2–3(2)(iii) (West 2006)).
At the temporary custody hearing, the State presented the
testimony of Robert Musial, the DCFS caseworker assigned to the
family. According to Musial, a Mundelein police department report
stated that Detective Katie Smith interviewed M.H. at the police
station. In that interview, M.H. stated that on four separate occasions
Jorge had touched or penetrated her “pochita,” identified by M.H. on
a body chart as her vaginal area. M.H. reported that Jorge’s actions
were painful and that she saw something red in her underwear after
one of the incidents. In addition, M.H. described an incident when
Jorge came up from behind her and whispered into her ear, “Where’s
your pochita?” Law enforcement officials reported M.H.’s allegations
to the DCFS hotline, and DCFS opened an investigation.
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Musial further testified based on notes prepared by DCFS
investigator Robert Schnabel. Schnabel spoke to Jacqueline through
a Spanish interpreter at a hospital where I.H. was receiving medical
care for an injured arm. Schnabel informed Jacqueline of M.H.’s
sexual abuse allegations and instructed her that Jorge should not have
any contact with M.H. or I.H. Schnabel’s report indicated that
Jacqueline agreed to the safety plan to keep the children from having
contact with Jorge during the investigation.
Musial later learned from a hospital worker that Jacqueline, Jorge,
and M.H. were visiting I.H. at the hospital. Musial contacted the
police department, then called the hospital and learned that Jacqueline,
Jorge, and M.H. had left. The next day, Musial received a call from
the hospital reporting that Jacqueline, Jorge, and M.H. were at the
hospital. Musial went to the hospital and spoke to Jacqueline. The
conversation was interpreted through a hospital interpreter who was
available through a telephone conference call. Jacqueline initially acted
surprised when Musial questioned her about M.H.’s allegations. After
Musial explained the nature of the allegations and mentioned
Jacqueline’s previous discussion with Schnabel, Jacqueline gave
Musial her attorney’s business card and told Musial she would not talk
to him without her attorney present. Musial then contacted
Jacqueline’s attorney, who declined to advise Jacqueline to prevent
Jorge from having contact with her children.
Musial again spoke to Jacqueline. This second conversation was
interpreted by Jacqueline’s friend Rosa. Jacqueline told Musial she
was taking her children to Jorge’s apartment. Musial admonished her
not to take her children to Jorge’s apartment while the investigation
was pending. Jacqueline could not provide an exact street address
where she would be staying with her children and refused to provide
Musial with a contact telephone number. Musial asked her if she
would agree to place M.H. and I.H. with a family member, but
Jacqueline said she did not want her children to stay with any family
member. According to Musial, Jacqueline did not believe that M.H.’s
allegations were truthful and, instead, believed that the grandmother
had fabricated the allegations. On cross-examination, Musial
acknowledged that M.H. had reported that Jorge sexually abused her
in January 2006, but that those allegations were ultimately determined
to be “unfounded.” Musial testified that M.H. was currently scheduled
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to undergo a sexual abuse examination.
Following closing arguments, the trial court found probable cause
to believe that M.H. and I.H. were abused and neglected, finding that
M.H. had alleged that Jorge sexually abused her on four separate
occasions, her allegations were specific, I.H. lived in the same home,
and Jacqueline refused to cooperate with the safety plan. The court
further found that immediate and urgent necessity existed to remove
the minors from their home and place them in shelter care, that
reasonable efforts had been made to prevent their removal, and that
shelter care was consistent with the minors’ health, safety, and best
interests. The court granted temporary guardianship to DCFS and
temporary custody to the minors’ grandmother.
The State later amended the petitions for adjudication of wardship
to include an additional allegation that the minors were neglected
based on an injurious environment in that the mother violated the
safety plan by allowing contact between the minors and Jorge.
Prior to the adjudicatory hearing, Jacqueline filed a motion in
limine to exclude any out-of-court statements made by M.H. to
Detective Smith on the basis that those statements alone, absent
corroboration or being subject to cross-examination, were insufficient
to support a finding of neglect or abuse. The trial court denied
Jacqueline’s motion.
At the adjudicatory hearing, Detective Smith, DCFS investigator
Schnabel, and DCFS caseworker Musial testified for the State. Their
testimony was consistent with the evidence presented at the temporary
custody hearing. In addition, Musial testified that a medical
examination of M.H. did not indicate sexual abuse. Both Schnabel and
Musial testified that the DCFS file contained a written safety plan.
However, although the record contains a DCFS report describing the
safety plan and indicating that Jacqueline agreed to the plan, there is
no written safety plan with Jacqueline’s signature in the record.
At the close of the State’s case in chief, the trial court granted
Jacqueline’s motion for a directed finding that the State had failed to
prove the underlying sexual abuse allegations by a preponderance of
the evidence. Accordingly, the trial court dismissed the counts in both
petitions that alleged the minors were neglected and abused based on
the sexual abuse allegations. The court entered an order adjudicating
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the minors neglected, however, on the ground that Jacqueline failed
to abide by the terms of the safety plan. The trial court subsequently
entered a dispositional order adjudicating M.H. and I.H. neglected,
making them wards of the court, and naming DCFS as their legal
guardian.
On appeal, Jacqueline challenged the trial court’s findings at the
temporary custody hearing, arguing that the State failed to establish
probable cause for the implementation of a safety plan. She argued
that the safety plan was based solely on M.H.’s statements, which
were neither corroborated nor subject to cross-examination, in
violation of section 2–18(4)(c) of the Juvenile Court Act of 1987 (705
ILCS 405/2–18(4)(c) (West 2006)). Jacqueline also challenged the
adjudication of neglect on the grounds that the State failed to prove
the existence of a safety plan, that Jacqueline understood the plan, or
that she violated the safety plan.
The appellate court rejected the State’s argument that the
sufficiency of the evidence at the temporary custody hearing was moot
because there was no relief available to the mother regarding the
temporary custody hearing. 382 Ill. App. 3d at 1100. The court held
that the appeal was not moot because the mother had identified the
reversal of the adjudication of neglect as the effectual relief that would
cure error in the temporary custody hearing.2 On the merits, the
appellate court concluded that the probable cause determination at the
temporary custody hearing was not supported by the evidence.
Specifically, M.H.’s statements were uncorroborated and not subject
to cross-examination. 382 Ill. App. 3d at 1098-99. In reaching its
conclusion, the appellate court relied on section 2–18(4)(c), requiring
that a minor’s statements alleging sexual abuse be subject to cross-
examination and corroboration if used to support a finding of abuse
or neglect. 705 ILCS 405/2–18(4)(c) (West 2006). The court noted
that the court in In re M.B., 241 Ill. App. 3d 697, 706 (1992), applied
section 2–18(4)(c)’s evidentiary requirement to a temporary custody
hearing. 382 Ill. App. 3d at 1099.
Next, the appellate court reversed the order adjudicating the
minors neglected, finding that “the [trial] court’s adjudication of
2
The State does not argue this point on appeal to this court.
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neglect was based entirely on a finding that respondent had failed to
keep the minors away from Jorge as directed by the safety plan, even
though the defects in the shelter-care hearing meant that there was
insufficient evidence of sexual abuse to warrant imposing the plan in
the first place.” 382 Ill. App. 3d at 1101-02. The court did not address
the remaining arguments raised by Jacqueline challenging the
adjudication of neglect.
We allowed the State’s petition for leave to appeal. See 210 Ill. 2d
R. 315. We granted leave for the Cook County public guardian and
Cook County State’s Attorney to file amicus curiae briefs. 155 Ill. 2d
R. 345.
ANALYSIS
The issue in this case is whether the evidentiary limitation in
section 2–18(4)(c) of the Act applies to temporary custody hearings.
This issue presents a question of statutory construction, which we
review de novo. Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 332
(2008). The cardinal rule of statutory construction is to determine and
give effect to the legislature’s intent. Abruzzo, 231 Ill. 2d at 332. The
legislature’s intent is best indicated by giving the statutory language
its plain and ordinary meaning. Abruzzo, 231 Ill. 2d at 332. To
determine the plain meaning, we must consider the statute in its
entirety and be mindful of the subject it addresses, as well as the
legislature’s intent in enacting the statute. Orlak v. Loyola University
Health System, 228 Ill. 2d 1, 8 (2007).
The State contends the evidentiary limitation in section 2–18(4)(c)
applies to adjudicatory hearings but not to temporary custody
hearings. The State’s construction of the statute is supported by the
plain language of the statute as well as the overall framework of
article II of the Act. Sections 2–18(2), (3), (5), (6) of the Act list
various types of evidence that are admissible or that constitute prima
facie evidence of abuse or neglect “[i]n any hearing under this Act.”
705 ILCS 405/2–18(2), (3), (5), (6) (West 2006). By contrast, section
2–18(4) describes evidence that is admissible but does not specify the
type of hearing at which that evidence is applicable. 705 ILCS
405/2–18(4) (West 2006). Section 2–18(4)(c), the provision at issue
in this case, provides:
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“Previous statements made by the minor relating to any
allegations of abuse or neglect shall be admissible in evidence.
However, no such statement, if uncorroborated and not
subject to cross-examination, shall be sufficient in itself to
support a finding of abuse or neglect.” (Emphasis added.) 705
ILCS 405/2–18(4)(c) (West 2006).
The plain and ordinary meaning of the language in section
2–18(4)(c) requires corroboration and cross-examination of a minor’s
previous statements alleging abuse or neglect only when those
statements are used as the sole basis for a finding of abuse or neglect.
705 ILCS 405/2–18(4)(c) (West 2006). A trial court does not,
however, make a finding of abuse or neglect at a temporary custody
hearing.
Section 2–10 governs temporary custody hearings, which must
take place within 48 hours of the minor’s protective custody. At the
hearing, “all witnesses present shall be examined before the court in
relation to any matter connected with the allegations made in the
petition.” 705 ILCS 405/2–10 (West 2006). Unlike section 2–18,
there is no language in section 2–10 restricting the testimony of the
witnesses to require corroboration or cross-examination. The trial
court must determine whether there is “probable cause to believe that
the minor is abused, neglected or dependent.” 705 ILCS 405/2–10
(West 2006). If the court finds no probable cause, the court shall
release the minor and dismiss the petition. 705 ILCS 405/2–10(1)
(West 2006). If the court finds probable cause, it must hear evidence
and determine whether it is consistent with the health, safety, or best
interests of the minor that the minor be released to his parents or
placed in shelter care. 705 ILCS 405/2–10(2) (West 2006). The court
may place the minor in shelter care if the court finds it “a matter of
immediate and urgent necessity for the safety and protection of the
minor” and that “reasonable efforts have been made or that, consistent
with the health, safety and best interests of the minor, no efforts
reasonably can be made to prevent or eliminate the necessity of
removal of the minor from his or her home.” 705 ILCS 405/2–10(2)
(West 2006). A temporary custody hearing is similar to both a
probable cause hearing and a temporary detention hearing under
section 5–501(2) of the Act (705 ILCS 405/5–501(2) (West 2002)).
In re Austin D., 358 Ill. App. 3d 794, 801 (2005), citing In re L.M.,
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189 Ill. App. 3d 392, 395 (1989) (referring to the temporary custody
hearing as a “probable cause hearing”). Essentially, the purpose of the
hearing is to determine whether a minor requires temporary placement
outside the home. Austin D., 358 Ill. App. 3d at 801, citing In re
W.B., 213 Ill. App. 3d 274, 283 (1991).
It is not until the adjudicatory hearing that the trial court makes an
actual “finding” of abuse or neglect. See 705 ILCS 405/2–21 (West
2006); In re Arthur H., 212 Ill. 2d 441, 462 (2004) (“Following
placement of a child in temporary custody, the circuit court must
make a finding of abuse, neglect or dependence before it conducts an
adjudication of wardship”). The State has the burden of proving the
allegations of neglect by a preponderance of the evidence. Arthur H.,
212 Ill. 2d at 464.
In our view, this distinction is dispositive of the issue on appeal.
A finding of probable cause is not equivalent to a “finding” on the
merits of abuse, neglect, or dependency. The trial court issues no
finding of abuse or neglect at a temporary custody hearing, and
section 2–18(4)(c)’s evidentiary limitation applies only when the
minor’s statements alone are used to support a finding of neglect or
abuse. At a temporary custody hearing, the trial court only considers
whether probable cause exists to believe the minor is abused or
neglected. 705 ILCS 405/2–10 (West 2006). Simply put, section 2–10
of the Act governs temporary custody hearings and does not require
the trial court to making a finding of abuse or neglect. See 705 ILCS
405/2–10 et seq. (West 2006) (detailing requirements for temporary
custody hearings). Consequently, we find that the evidentiary
limitation of section 2–18(4)(c) is inapplicable to temporary custody
hearings.
The framework for juvenile court proceedings in the Act further
supports our conclusion. We construe statutes as a whole, evaluating
each provision in connection with every other section of the statute.
People ex rel. Department of Public Aid v. Smith, 212 Ill. 2d 389, 404
(2004). Article II of the Act sets forth the procedures for proceedings
concerning abused, neglected, or dependent minors. 705 ILCS
405/2–1 (West 2006). Upon the filing of a petition for wardship from
the State, a minor who has been taken into temporary protective
custody must be brought before a judicial officer within 48 hours for
a temporary custody hearing. 705 ILCS 405/2–9(1) (West 2006). If
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the minor is not brought before a judicial officer within the 48-hour
period, the minor must be released from temporary custody at the
expiration of the 48-hour period. 705 ILCS 405/2–9(3) (West 2006).
Within 90 days of service of an abuse or neglect petition under the
Act, the trial court must conduct an adjudicatory hearing. 705 ILCS
405/2–14(b) (West 2006). “At the adjudicatory hearing, the court
shall first consider only the question whether the minor is abused,
neglected or dependent.” 705 ILCS 405/2–18(1) (West 2006). If the
trial court makes a finding that the minor is abused or neglected, it
then must hold a dispositional hearing within 30 days to determine
whether it is consistent with the health, safety, and best interests of the
minor and the public that the minor be made a ward of the court. 705
ILCS 405/2–21(1), (2) (West 2006).
We agree with the State that this framework demonstrates the
legislature intended the temporary custody hearing as preliminary in
nature with a focus on the necessity of removal for the immediate
protection of the minor. Because the temporary custody hearing must
occur within 48 hours of a minor being taken into protective custody,
little time is available for obtaining corroborating evidence of the
minor’s statements. The statute does not allow a continuation of the
hearing, unlike section 2–14(c) (705 ILCS 405/2–14(c) (West 2006)),
which provides for a continuation of the adjudicatory hearing under
certain circumstances. Based on the plain language of the statute, the
legislature did not intend to extend section 2–18(4)’s corroboration
and cross-examination requirement to temporary custody hearings
under section 2–10. Under the express language of section 2–18(4)(c),
those additional evidentiary requirements apply only at the later
adjudicatory hearing when making abuse and neglect findings.
Despite the plain language of the statute, the appellate court in the
case at bar relied on the holding in In re M.B. to conclude that section
2–18(4)(c) applies to temporary custody hearings. 382 Ill. App. 3d at
1099, citing In re M.B., 241 Ill. App. 3d 697 (1992). That reliance is
misplaced because the holding in In re M.B. is based on a flawed
analysis of the statute. Moreover, no other court has relied on In re
M.B. for that conclusion.
In In re M.B., DCFS filed petitions for adjudication of wardship
alleging that the minors, S.B., M.B., and J.B., were neglected due to
an injurious environment. The petition concerning S.B. also contained
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allegations of sexual abuse, and the petition concerning J.B. contained
additional allegations of physical abuse. In re M.B., 241 Ill. App. 3d
at 699. At the temporary custody hearing, Diane Phillips, a DCFS
child welfare supervisor, testified that she had spoken with Dr.
Antonio Blanco, a psychiatrist who treated J.B. According to Blanco,
J.B. told him about instances of physical and sexual abuse perpetrated
by his father against all three children. Philips further testified that
J.B.’s counselor, Jerome Anderson, told her that J.B. had spoken of
his father’s membership in a cult, whose members “made him do
things.” At the hearing, the trial court allowed S.B. and J.B. to be
questioned, in camera, by their guardian ad litem. The minors denied
being physically or sexually abused. At the conclusion of the hearing,
the trial court found that no probable cause existed to warrant the
minors’ placement in temporary custody and dismissed the petitions.
On appeal, the mother argued that the finding of no probable cause
was against the manifest weight of the evidence. The appellate court
affirmed. In re M.B., 241 Ill. App. 3d at 699. The court held that
J.B.’s previous statements to Dr. Blanco and to Anderson did not
constitute sufficient evidence to establish probable cause. The court
found that, under section 2–18(4)(c), the statements were not
corroborated and neither Blanco nor Anderson was subject to cross-
examination. In re M.B., 241 Ill. App. 3d at 706.
The In re M.B. court’s conclusion is not supported by the
language in section 2–18(4)(c) of the Act. The court applied the
statute to the doctor’s and counselor’s statements rather than to the
minor’s statements. The statute applies to the statement of the minor
and whether that statement is corroborated or the minor is present to
testify. Indeed, the minor did testify at the hearing through an in
camera interview.
Furthermore, the In re M.B. court did not analyze the propriety of
applying section 2–18(4)(c)’s evidentiary limitation to temporary
custody hearings, instead simply citing to In re Marcus E., 183 Ill.
App. 3d 693 (1989). In re M.B., 241 Ill. App. 3d at 706. In re Marcus
E., however, was an appeal solely from an adjudication hearing and
made no mention of the admissibility of a minor’s prior statement at
the temporary custody hearing. See In re Marcus E., 183 Ill. App. 3d
at 701-02. In In re Marcus E., the parents challenged the evidence
supporting the trial court’s finding after an adjudicatory hearing that
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their two children had been abused and subjected to an injurious
environment. In re Marcus E., 183 Ill. App. 3d at 702-03. The
appellate court concluded that “[o]n its face the statute provides that
out-of-court statements will not support a finding of abuse if
‘uncorroborated and not subject to cross-examination.’ ” In re
Marcus E., 183 Ill. App. 3d at 704, quoting Ill. Rev. Stat. 1983, ch.
37, par. 704–6(4)(c) (now 705 ILCS 405/2–18(4)(c) (West 2008).
Noting that the statute did not allow a minor’s hearsay statements to
be the sole basis for a finding of abuse, the court concluded that “the
children’s out-of-court statements may be used only in conjunction
with corroborative evidence to support a finding of abuse.” In re
Marcus E., 183 Ill. App. 3d at 705.
The conclusion in In re Marcus E. that the statutory evidentiary
limitation applies to a finding of abuse after an adjudication hearing
is consistent with our interpretation of section 2–18(4)(c).
Consequently, we find that In re Marcus E. does not support the
appellate court’s decision in this case or in In re M.B., to apply section
2–18(4)(c)’s evidentiary limitation to temporary custody hearings.
Therefore, we overrule In re M.B.’s application of section 2–18(4)(c)
to temporary custody hearings.
We recognize the appellate court’s concern that, without the
evidentiary safeguard in section 2–18(4)(c), “a flimsy allegation of
abuse could be the basis for instituting an onerous safety plan, the
noncompliance with which could trigger an adjudication of neglect,
which is very serious.” 382 Ill. App. 3d at 1101. We disagree,
however, with the appellate court’s related conclusion that the “trial
court’s probable cause determination [at the temporary custody
hearing] was the foundation on which any safety plan could be built.”
382 Ill. App. 3d at 1101. Section 2–10 requires the trial court to
determine not only probable cause, but also whether removal is a
matter of immediate and urgent necessity and whether DCFS made
reasonable efforts to prevent removal of the child or whether no
efforts reasonably could be made to prevent the child’s removal. 705
ILCS 405/2–10(2) (West 2006). Thus, the trial court must consider
whether implementing a reasonable safety plan could eliminate the
need to remove a child from the parent. Contrary to the appellate
court’s suggestion, if a proposed safety plan is unreasonable or unduly
onerous, the trial court may refuse to remove the child from the home
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whether or not the parent agrees to comply with the plan.
We are ever mindful that under the Act, “[t]he best interests of the
child is the paramount consideration to which no other takes
precedence.” In re Austin W., 214 Ill. 2d 31, 46 (2005). Even though
this approach may result in removal of the minor at the onset of an
investigation, as here, it is certainly reasonable for the legislature to
err on the side of protecting minors from abuse and neglect during the
preliminary stages of an investigation. This is particularly true when
the Act mandates a temporary custody hearing within only 48 hours
of taking a minor into protective custody following an allegation of
abuse or neglect.
Finally, we note that the State, in its brief to this court, has stated
that it is seeking “reversal only of the appellate court’s legal holding
that the evidentiary limitation in section 2–18(4)(c) of the Act applies
to temporary custody hearings, and does not challenge the appellate
court’s decision to vacate the adjudication of neglect based upon the
facts of this specific case.” Because the State is challenging the sole
rationale relied upon by the appellate court in reaching its judgment
and, at the same time, asserting that the judgment of the appellate
court should be affirmed, we construe the State’s position as a
concession of error with respect to other arguments that were raised
by the mother before the appellate court but not reached in the
appellate court’s opinion. Specifically, we understand the State’s
position to be a concession that “the State failed to prove that a safety
plan existed, that respondent understood it, or that respondent
violated it.” 382 Ill. App. 3d at 1098. Based on our review of the
record, we agree with and accept the State’s concession. Our
acceptance of the State’s concession means that the judgment of the
appellate court must be affirmed. See, e.g., People v. Brooks, 233 Ill.
2d 146, 157 (2009).
CONCLUSION
We hold that section 2–18(4)(c) of the Act, requiring
corroboration and cross-examination of a minor’s previous statements
relating to allegations of abuse or neglect, does not apply to
temporary custody hearings. To the extent the appellate court applied
section 2–18(4)(c) to a temporary custody hearing, we overrule that
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portion of In re M.B., 241 Ill. App. 3d 697 (1992).
The judgment of the appellate court is affirmed.
Affirmed.
JUSTICE FREEMAN, dissenting:
The majority holds that the provision contained in section
2–18(4)(c) of the Juvenile Court Act of 1987 (705 ILCS
405/2–18(4)(c) (West 2006)) requiring a minor’s statements to be
corroborated and cross-examined is inapplicable to temporary custody
proceedings. I believe that my colleagues have improperly reached this
issue. It is my view that leave to appeal in this matter was
improvidently granted, and that this appeal should be dismissed.
In order to fully grasp the error of the majority, focus must be
directed to the procedural history of this case. At the close of the
State’s case in chief at the adjudicatory hearing, counsel for the
minors’ mother–Jacqueline M.–moved for a directed finding that the
State had failed to prove by a preponderance of the evidence that
M.H. had been a victim of sexual abuse. The circuit court granted the
motion and dismissed the counts in the petitions for adjudication of
wardship that alleged the minors were neglected and abused based
upon the sexual abuse allegations. The circuit court, however, entered
an order adjudicating the minors neglected based upon Jacqueline’s
alleged failure to comply with the directive to keep the minors away
from Jacqueline’s live-in boyfriend, Jorge G. Jacqueline thereafter
filed a motion to reconsider. The circuit court denied that motion and
subsequently entered a dispositional order, making the minors wards
of the court and awarding DCFS legal guardianship.
On appeal, Jacqueline challenged the adjudication of neglect on
two grounds. First, she asserted that the temporary custody order on
which the adjudication was based was improper because M.H’s out-
of-court statements were not subject to cross-examination and the
State failed to present evidence to corroborate the report of abuse.
Accordingly, she asserted that there was no probable cause to grant
temporary custody to DCFS and to implement a safety plan. Second,
Jacqueline argued that the circuit court erred in adjudicating the
minors neglected based upon her alleged violation of a DCFS safety
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plan, as the State failed to prove that a safety plan existed, that she
understood it, or that it was violated.
The appellate court agreed with Jacqueline and reversed the
judgment of the circuit court. The court held that the State failed to
prove at the adjudicatory hearing that Jacqueline neglected the minors
by violating the DCFS no-contact directive. The court noted that the
sole basis for implementing that directive was the allegation, based
upon M.H.’s out-of-court statements, that Jorge sexually abused her,
“even though the defects in the shelter-care hearing meant that there
was insufficient evidence of sexual abuse to warrant imposing the plan
in the first place.” 382 Ill. App. 3d at 1101. The court explained that
because M.H.’s hearsay statements introduced at the temporary
custody hearing were neither corroborated nor subject to cross-
examination pursuant to section 2–18(4)(c) of the Juvenile Court Act,
they were insufficient to support the probable cause finding of abuse
and neglect. 382 Ill. App. 3d at 1100. The court further noted that its
ruling was consistent with the 1992 decision in In re M.B., 241 Ill.
App. 3d 697 (1992), which held that section 2–18(4)(c) of the
Juvenile Court Act applied to temporary custody hearings as well as
adjudicatory hearings. 382 Ill. App. 3d at 1099.
In addition, the appellate court observed that, in finding neglect,
the circuit court focused solely upon Jacqueline’s noncompliance with
the plan, regardless of the reasons for instituting it. The appellate
court concluded:
“If we were to adopt the State’s position [that the statute did
not apply], a flimsy allegation of abuse could be the basis for
instituting an onerous safety plan, the noncompliance with
which would trigger an adjudication of neglect, which is very
serious. While the best interests of the minors is paramount,
adjudicating [the minors] neglected based on respondent’s
noncompliance with an unfounded safety plan prejudiced
respondent and the family as a whole.” 382 Ill. App. 3d at
1101-02.
Although the State took the position before the appellate court
that the issue of awarding DCFS temporary custody was moot, the
court disagreed, and, in any event, believed that the issue could be
reached under the public interest exception to the mootness doctrine.
382 Ill. App. 3d at 1100. Accordingly, the appellate court reversed the
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circuit court’s order adjudicating the minors neglected.
In its petition for leave to appeal to this court, the State asserted
that while it did “not seek a reversal of the appellate court’s judgment
in this case,” it nevertheless sought review of the court’s reasoning
“because the appellate court reached a moot issue under the public
interest exception and, in so doing, misguided the lower courts in their
application of section 2–18(4)(c) of the Act.” The State’s petition then
listed two points for reversal: (1) that the appellate court’s application
of section 2–18(4)(c) to a temporary custody hearing was contrary to
the language and purpose of the Juvenile Court Act; and (2) that the
appellate court’s ruling that the neglect adjudication did not render the
temporary custody hearing moot was erroneous. In addition to
reversal of that portion of the appellate opinion which discussed
section 2–18(4)(c), the State also requested, in the alternative, that
this court exercise its supervisory authority to vacate that portion of
the appellate court’s opinion.
After we granted the State’s petition for leave to appeal, the
State’s subsequent brief to this court again asserted that it was
“seek[ing] reversal only of the appellate court’s legal holding that the
evidentiary limitation in section 2–18(4)(c) of the [Juvenile Court] Act
applies to temporary custody hearings,” and that “[t]he People do not
challenge the rest of the appellate court’s decision, which vacated the
finding of neglect for [I.H.] and [M.H.].” I further note, however, that
although the State raised the issue of mootness in its petition for leave
to appeal in relation to its challenge of the appellate court’s reasoning,
in its brief to this court the State does not argue–much less
mention–mootness in any context. In addition, the State abandoned its
call for the alternative relief requested in its petition, and now asks
that the holding of the appellate court regarding section 2–18(4)(c) be
vacated.
As a direct result of the State’s unorthodox position in this appeal,
i.e., that it is not challenging the judgment of the appellate court,
Jacqueline has not participated in the instant action. Subsequent to the
State’s filing of its brief, Jacqueline’s counsel informed this court, in
a letter dated December 23, 2008, that “[b]ecause the State is not
challenging the status of my client in the appeal, she has chosen not to
proceed with arguments in this cause.” I note that this critical fact is
conspicuously absent from the majority opinion.
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Although we granted the State’s petition for leave to appeal, my
colleagues do not consider the fundamental threshold issue of whether
this appeal has been improvidently granted. The position taken by the
State is in direct conflict with the long-settled principle that we review
the judgment of the appellate court, regardless of its rationale. People
v. Durr, 215 Ill. 2d 283, 296 (2005). In addition, because the State as
appellant is not challenging the judgment of the appellate court–the
only proper subject of our review–we cannot provide meaningful
relief, and any decision rendered in this matter is essentially advisory
in nature. See In re Mary Ann P., 202 Ill. 2d 393, 401 (2002).
Traditionally, this court avoids rendering advisory opinions. Oliveira
v. Amoco Oil Co., 201 Ill. 2d 134, 157 (2002).
The majority’s acceptance of the State’s challenge solely to the
rationale underlying the judgment of the appellate court and not to the
judgment itself is a dramatic departure from our well-settled
procedure, which not only draws into question the appropriate manner
in which to petition for leave to appeal to this court, but also invites
an element of gamesmanship to be injected into this process by
allowing an appellant to pursue a strategy whereby that party does not
contest the judgment below, but, for whatever hidden reason, seeks
only to overturn a rationale within the case.
The potentially negative results flowing from the majority’s
acceptance of this approach are evident in the instant appeal. The
majority’s opinion on this important issue of statutory construction is
based upon its consideration of the arguments of only one side in this
case, which is a direct result of the State’s decision to divorce the
appellate court’s judgment from its reasoning, and to challenge only
the latter, not the former. I submit that one-sided arguments are an
inevitable outgrowth of the majority’s endorsement of the State’s
departure from conventional procedure. 3 Accepting a petition for
3
In contrast, I note that the United States Supreme Court does not
entertain one-sided argument in cases wherein it has granted certiorari.
Pursuant to its custom and practice, the Court appoints attorneys to act as
amicus curiae to brief and argue a case pending before it to ensure that both
sides of a case are represented and that both sides of the argument are heard.
See, e.g., Toibb v. Radloff, 501 U.S. 157, 160 n.4, 115 L. Ed. 2d 145, 150
n.4, 111 S. Ct. 2197, 2199 n.4 (1991) (where the named respondent declined
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leave to appeal from a party seeking only review of a rationale and not
a reversal of a judgment could lead the opposing party to reasonably
decide–as Jacqueline did here–to forgo involvement in the appeal.
Indeed, the investment of time and resources to counter an appeal that
will not alter the outcome of a judgment which was in that party’s
favor makes little sense, particularly if that party has no concern
regarding the rationale supporting the judgment. Acceptance of such
a practice will engender gamesmanship, as parties attempt to gain
strategic advantage through the use of the appellate process. With
today’s opinion, the majority places its imprimatur on this practice.
As a result of allowing this appeal to proceed, the majority fully
adopts the arguments advanced by the State without the benefit of
hearing arguments for a different construction of this statute from the
other side.4 In our courtroom in Springfield, the motto “Audi Alteram
Partem” is inscribed over the entrance, which reminds us to “Hear the
other side” to ensure fairness in judicial matters. I fear that my
colleagues have forgotten this principle in deciding this matter, by
overruling case law that has not been contested in nearly 20 years,
based upon a single-sided argument. Although there has been no
adversarial testing of the State’s arguments due to the manner in
which it has proceeded in this case, we are nevertheless binding later
courts which may have the opportunity to fully hear and test the
opposing views on this issue.
to respond to the petitioner’s petition for certiorari, and where that petition
was granted, the Court appointed counsel to serve as amicus curiae in
support of the judgment of the Court of Appeals below); R. Stern & E.
Gressman, Supreme Court Practice §13.14, at 743 (9th ed. 2007) (it is the
custom of the Court to “invite[] the amicus to present an argument because
for some reason no other counsel would have represented that side of the
case”). It is my view that such an approach is preferable over a court of
permissive review entertaining argument as to only one side of a case.
Indeed, adopting a custom and practice similar to that of the Supreme Court
would fit well with this court’s encouragement of pro bono service (see 210
Ill. 2d R. 756(f)).
4
In fact, nowhere in the majority opinion is it acknowledged that this case
is being decided upon a one-sided argument.
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The concerns I have set forth regarding my colleagues’ zeal to
render an opinion in this case are further supported by the fact that the
majority states that it “affirm[s] the judgment of the appellate court,”
but “reject[s] its conclusion that section 2–18(4)(c) of the Act applies
to temporary custody hearings.” Slip op. at 2. As stated, a
fundamental principle of appellate law is that when an appeal is taken
from a judgment of a lower court, “ ‘[t]he question before [the]
reviewing court is the correctness of the result reached by the lower
court and not the correctness of the reasoning upon which that result
was reached.’ ” People v. Johnson, 208 Ill. 2d 118, 128 (2003),
quoting People v. Novak, 163 Ill. 2d 93, 101 (1994). In the instant
matter, this usual procedure is turned on its head, with no reasoned
basis for doing so. Further, by “reject[ing]” the appellate court’s
“conclusion” that the provisions in section 2–18(4)(c) of the Juvenile
Court Act apply to temporary custody hearings, the majority has
stripped away the sole legal basis for the appellate court’s reversal of
the circuit court’s judgment. As a result, the majority has performed
the unprecedented feat of overturning a judgment of the circuit court
absent any legal rationale for doing so.5
Moreover, although I am in complete agreement with the majority’s
assertion that the paramount concern in these proceedings is the best
interests of the children to assure that they are safe and secure in all
instances, I note that by their opinion today, my colleagues do nothing
to protect I.H. and M.H., the two minors involved in this proceeding.
The majority determines that the appellate court’s reasoning was
erroneous in interpreting section 2–18(4)(c) and sets forth a new
interpretation of this statutory provision which supports the judgment
of the circuit court. However, by virtue of the unconventional
procedural posture of this case, the majority’s opinion nevertheless
affirms the judgment of the appellate court, which reverses the circuit
5
As a further example of the conundrum in which the majority finds itself,
the “Conclusion” section of its opinion states that the majority “affirms” the
judgment of the appellate court, but that “[t]o the extent the appellate court
applied section 2–18(4)(c)’s evidentiary limitation to a temporary custody
hearing, we overrule that portion of In re M.B., 241 Ill. App. 3d 697(1992).” Slip op. at 13. Note, the majority is affirming a judgment which is
grounded in a case which it has now overruled.
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court. In other words, the majority’s opinion overturns a judgment of
the circuit court which, under the analysis and reasoning contained
within that same opinion, should be affirmed. The internal
inconsistency and confusion within the majority opinion, coupled with
its affirmance of a reversal of a judgment of the circuit court without
any stated legal rationale which is in direct contradiction to its own
holding in its opinion, further supports my decision to dissent.
It is only in the penultimate paragraph of its opinion that the
majority briefly acknowledges the difficulty created by the State’s
position “challenging the sole rationale relied upon by the appellate
court in reaching its judgment and, at the same time, asserting that the
judgment of the appellate court should be affirmed.” Slip op. at 12. The
majority, however, quickly and unconvincingly dismisses any concerns
by characterizing the State’s position as a “concession of error with
respect to other arguments that were raised by the mother before the
appellate court but not reached in the appellate court’s opinion.” Slip
op. at 12. Specifically, the majority “understand[s]” the State’s position
“to be a concession that ‘the State failed to prove that a safety plan
existed, that respondent understood it, or that respondent violated it.’
” Slip op. at 12. Absent analysis or explanation, my colleagues “agree
with and accept the State’s concession” and conclude on that basis that
“the judgment of the appellate court must be affirmed.” Slip op. at 12.
I submit that by remodeling the arguments made by the State, the
majority is treading dangerously close to acting as an advocate for the
State, a role which is inappropriate for an appellate court to assume.
Illinois Department of Healthcare & Family Services v. Warner, 227
Ill. 2d 223, 234 n.2 (2008). At no time during the course of these
proceedings has the State ever “conceded error” on a point in this
appeal, and this characterization of the State’s position does not
accurately reflect the manner in which it has litigated this case.
Accordingly, for the above reasons, I cannot join the majority
opinion.
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