mr chief justice may please the court counselor i'm coming before you from a case that arises out of a juvenile neglect and abuse case out of peoria county this there are numerous issues before the court below was correct in finding that this minor was an inner jurist neglected by reason of an interest environment and in addition whether or not collateral stop was properly applied in this case the state has brought the alleging that my client had been that this child was neglected but because my client i've been previously found unfit there been no subsequent finding of fitness and also that my client had been  might in fact except at the time of the dispositional hearing except for the single task of not having completed the sex offender counseling my client had completed virtually all the tasks that he'd been ordered to do those ranged from domestic violence classes drug drops sex offender assessment he had been doing ongoing conflict psychological of average numerous of the sort of standard comes in well i think that was one of the majors tasks that they had been focusing on the only well the sex offender therapy that he had not completed that and they would point to that as an important  task that for for the basis for the finding however there were numerous other tasks the domestic violence and all these other tasks in addition the the dispositional report at the time convicted of aggravated criminal sexual activity abuse and i think that case there was a sexual component this was two separate access to this to this sent this to eugene isn't that right it was two separate by complaining that the really the last court ordered task of sex offender which i think when looking at their pin it seemed to be paramount consideration i believe that the court below disregard my client's nearly really nearly four years without any evidence of actual sexual molestation or exploitation at the time of the dispositional hearing and i believe that passes of time with no new charges and i would point out that he has never been convicted of any sex offense where respect to those two and a kid reports and but i would point out that the passage of time with no new charges are illegal behavior sexual the one to challenge this case was newly born so i would have been with him for very long but the previous child was was continued to be in protective custody of the state during the duration of that time as the court had before though his the the years the passage of time what i'm what i mean by that is that we had attempted to introduce new evidence earlier evidence and some additional evidence with respect to my client's status as a sex offender coming out of the previous work here proceeding he barred main evidence ruling barring us from presenting evidence on that issue arguing that that matter was settled and i believe that based on that ruling i believe that he was relying on the previous decision finding of my client as a sex offender and as a basis for finding him on fit and present case so i don't i can't read the judge's mind but i don't believe that he went much beyond what had been previously determined but in any event i do believe that the passage of time would have been probative really it's  that and therefore that the previous finding of his unfitness the previous finding that he was a sex offender is really stale and somewhat with respect to the current case i believe the court again ignored all of the service task that my client had completed at the time and granted there was a costly that's not but that's always going to be ongoing and it was a sex offender therapy but he was attempting to participate in both of i'm cooperate of in the sense that he was not prepared to admit that he committed a criminal offense and and that really was about the extent of that therapy with respect that isn't part of the record anywhere whether there was any privilege between he responded and there is i don't think there's a minute in a record that speaks to that but the juvenile court act clearly there's at least my reading of court act when you look at that but can come into evidence i think only the attorney client privilege applies in juvenile court cases so so whatever happened would not be privileged with respect to the juvenile court proceedings i don't know that the therapist told you gave it any kind of for lack of better term miranda type warning i don't know that anybody ever gave that warning certainly  so i am not aware that the therapist given that warning i would be surprised if that were given there's nothing in the evidence to suggest that that occurred either from the court or from the therapist was it improper for the court to require sex kind of counselling been presented you know implying or stating that my client had offended and that constituted really most of the evidence that i recall to establish that my client evidence or credible evidence again so our position is that he was not a sex offender not a proven by product that you have to say he was a sex offender we had intended to put evidence on to demonstrate that which would have included all the things we've discussed already in terms of was ordered to do a sex offender assessment which in the fall recommendations and the recommendation would you say that again he was ordered to do a sex no sex offender assessment and when then what did you say and out of destiny came the recommendation that that was a foregone conclusion he was in sex offender therapy from the earlier case and then in this case they were then assess i believe they or they may have just complete the therapy i can't recall off the top of my head all i know is that he was to continue doing  sex offenders there be in the second case first case he was asked to do a sex offender assessment and follow the recommendations which recommended therapy and then carried over into the second case of my recollection is that in the second case he was or all yes i think it did and this is why so because there was evidence before the court of the dispositional hearing in this case you know in this case in the latter that my client had attempted to go to the count to the therapist and had denied that he had committed an offense and a therapist as discharge him so that evidence was before this court in this case that he had done his therapy had refused to admit the commission of a crime and he was discharged he was he attempted alternative ways to do it but it was not just us successful he was just our so the court knew the trial judge knew in this case the therapy anyhow but even if the court then you know that i would submit that the court put into motion a chain of events that would have required at some point down my client make a how do you address the state's argument that that there's no dispute is there that this was a private there was not a governmental agent well that that the therapist i believe was with a an agency that contracts with the department children family services and so i guess they're private in that sense but there is a there is a believe a effect not who you're meeting it to i think that you'd certainly we would all agree that a that a court could not but we may not all agree but i would submit that the law is pretty clear that if a court specifically ordered somebody to go to the sheriff's office and turn themselves in and in mid to committing a murder that would be violent biology of the fifth of him and the fact that the court says well court would be and will certainly under your theory would be precluded from sending someone to a therapist who is going to say the only way i can help you is if you admit the problem and meant what you did so i guess he think the court in general now would have to find therapists that would not require that to go into their counseling very well or hav them complete their goals at the court in the state up from the well the state is free to develop solutions to these problems within the context of you know within the context of our constitution i would propose that there are several cannot be used against them subsequently the state the court could direct the state you know if you think this guy committed a crime charge him and and and try and at least give him the benefit of a trial were the words of the standard of evidence is what it ought to be they could off the court could also yet do what you suggest is a well he has to go into therapy but he not going to be required to make an admission you can do it through a hypothetical it please the court i am assistant attorney general richard has a counsel for the people in this case and i urge the court to affirm all aspects of the appellate court's decision except its ruling on the fifth amendment issue urge the court to affirm the finding that collateral of stoppel applied in this case and that the evidence supported the circuit court's findings of neglect due to an injury as environment and the own fitness of the father in this case even without regard to the weight given to his failure to complete sex offender therapy i as a parent i'd like to direct my attention first to the fifth amendment issue and then absolutely need to do so now but as a practical matter if you leave the fifth amendments published excuse me the third district's published fifty members sitting on the books as president for all our courts in illinois you would leave intact what we consider to be a a fundamentally flawed statement of constitutional law that would affect juvenile proceedings through out the state it departs from the precedent of the same court in the l f decision less than a decade earlier it departs from the present established by all other courts of other finding that accompanied by the father's state of complete denial that he had done anything wrong or that he had a problem in the evidence in front of the court was that this person had not had met the victimized or abused a two minors in his care young girls six year old niece and an eight or nine year old granddaughter but had abused the second one on repeated occasions the medical evidence supporting the indicated reports was plenty sufficient for the categorical rule that evidence of abuse in one case is never sufficient to support a finding of unfitness in another case and here we have a situation in which the circuit court had the evidence in front of it including the fact that the father had committed repeated instances of abuse of two children in his care and was in a total state of denial about having a problem he fought with the caseworker repeatedly about whether he really even should be required to complete sex offender therapy the caseworker reports show that when the caseworker showed up he had pornography he kissed the caseworker on the neck and asked why he was doing this he said well she let me do it i couldn't do it so i did this is somebody who has a serious problem and in this court's decision of age were approved the principle of anticipatory neglect the principle based on common sense that you don't have to wait for every sibling to be abused before they get the benefit of the court protection this case cries out for the type of protection that the circuit court found was warranted here as to the clock finding there was also the additional evidence related to the mother because the focus is on the child not the  parents although obviously the parents conduct contributes to the environment that determines whether the children are neglected and there has been no argument by when examining that the column the prior offenses or the prior indicated  misty's was there any actual hearing or did the court simply look at the record that demonstrated that there were these two indications in the record there was an evidentiary hearing there was a trial it which the  here testified in the circuit court in that case found his testimony to be advanced to these two indicated yes he testified he denied that he done anything wrong in the circuit court concluded that his testimony was not candid or believable and the his decision after that trial after review of the evidence in that case it found that there was sufficient evidence to support the finding of children is it testified you know the children did not testify was there evidence offered hearsay evidence offer the well in the indicated reports from d c i fast which i believe went in without objection there was hearsay that was reported in the may have been through you know what even the second layer of hearsay where the children reported to a teacher then that was confirmed  by the children's report to the to the to the mother in one case there was a children to one another child's report to a school teacher the father would only interviewed by the d c fs investigator made submissions that he later  retracted in open court so yes there was hearsay i believe the hearsay went in without objection and the juvenile court act does permit a certain amount of lenity in these circumstances i wasn't the person to try the case i wasn't in you know posing counsel's mind when he made decisions about what to you know what to attack and what not to object to but there was a trial that trial resulted in a finding that this abuse had occurred in both instances there was again the medical testimony in and the collateral stoppel attached not to a finding of unfitness in this case the collateral stoppel attached to the instance of abuse themselves that was the issue as to which collateral stoppel properly applied based upon satisfaction of the relevant elements of that standard nobody prevented the father in this case from putting on any evidence that although he may have been found unfit earlier in the prior proceeding subsequent events had occurred so that he should be found to to rehabilitate himself or to be fit in this case he didn't put on any evidence what he tried to do was really to get the prior issue and him to offer his own testimony that he didn't do what the court had already found and the appellate court had affirmed he had done which was to molest his niece in his granddaughter on prior occasions there was no denial of any opportunity for him to present additional evidence to the step broader issue of unfitness but nonetheless the circuit court was on solid ground in concluding that the evidence before it including the father's persistent denials that he had a problem or done anything wrong that that he remained plan there he is required sex abuse there appear any other other therapy if if the respondent refuses to cooperate because he has to come in a himself could he get notified d c fs to have another therapist appointed so he wouldn't have to incriminate himself because it seems like every responded in the situation could refuse by saying that i e yes it is it is a potentially a problem but the answer to it is not simply to contact d c i fasts if this if this father had shown an active desire to pursue alternative therapy as opposed to an attitude of let's you know run out the clock and if it didn't work one time i'm off the hook own act of concern to fulfill the legitimate obligation to pursue sex offender therapy his responsibility was to contact the court the caseworker can be his lawyer the only person who can change the nature of the  order here which did not specifically require any incriminating admissions or any waiver of fifth amendment rights if he was at an impasse because the therapy the private there was that he had seen essentially said we're not going anywhere because you will admit that you did anything wrong and he wants to pursue alternative therapy if he believes that he's a meaningful candidate for that because not everybody is and if you fails because he's not a candidate for any good therapy to get out if i'm a court  that yes i think that's a legitimate you know middle ground and some of the cases address that and i've discussed those in my brief i mean there are the two broad categories here they're well recognized by the cases what i call the do's and don'ts the  penalize a parent for invoking their fifth amendment rights that's the same that's after the fact but likewise it is legitimate on the other hand for the court to be able to order a sex offender therapy based upon prior  ication of physical or sexual abuse that the father doesn't dispute that ability in this case and at the end of the day if the parent fails to comply that there will be successfully it is normally permissible for the court to take that into account because that's attributable to the state's interest in that putting children into the hands of parents who have a prior history of abuse and having rectified the problem there is a middle ground and that's what i understand you'd be focusing on justice burke which is in a situation where the court basically is on the permissible side of those two categories but you have sort of a middle situation which is the the  parent here goes to a therapist and there's an impasse because the parent says listen i'm not going to admit that i did anything wrong and our position is that in those circumstances it is not the court's responsibility to  identify and find alternatives for the problem and that's what the appellate court's decision the majority's opinion did in this case it shifted responsibility for completion of sex offender therapy from the father to the court and that creates backwards incentive creates an incentive for it in the words parents who want to total state of denial that he doing wrong which is counter to plenty of case law that says those are the parents for whom the problem is often the worst and it creates an incentive for them to delay to avoid to have ada in to seek an excuse not to undergo therapy where at the twelfth hour the last minute they show up in court and say oh i was discharged because i told the therapist i did you know never did anything wrong wasn't going to admit it and then the courts in the position of having a dispositional hearing scheduled no request for a continuance nor objection to that schedule no request by the father for the court to give the father an opportunity to pursue alternative therapy no showing by the father that he is a candidate who susceptible to benefiting from socks therapy and then essentially says ok end of story we're done you can't tell that against me then it's shifting from the father who has the responsibility to to complete such there be that shift responsibility from the father to the court and it does so in ways that create per person said to us if there is a situation then i'm going to use this as sort of a rough analogy if a court orders somebody specifically to undergo alcoholics anonymous program because they have a drinking driving problem you know and there are cases that say well that has sort of a religious component and we're not going to you know approve court orders that specify that type of therapy well if the court simply said i well i'm going to take out the specification of alcoholics anonymous and i'm going to tell the i'm going to tell the the offender here that they should do any alcohol rehabilitation therapy if the the offender then comes back to court and says you know we live on an island there's only one alcoholics program on this island and the only one is alcoholics anonymous the court says ok fine you know then we have a dilemma here and wolf will work to solve that dilemma but there was no showing of that in this case there was no effort to make such a showing the father never said to the court through you know through his attorney i think i could benefit from therapy that would not require an admission and i've reached an impasse i'd like an opportunity to pursue that and i think there there there is perhaps some clarification required of of the record the father says in his brief that he told the therapist that he wanted to pursue alternative strategies and i don't believe the record supports that the father said he told that their best let's talk about something else let's move on to something else and the his attorney asked him at the trial at the dispositional hearing did the therapist suggest alternative therapies and the father said no the father never said that he tried to pursue alternative therapies the evidence also shows that the caseworker tried to get the father to go back and see what benefit he might get even without making admission and i understand that the way this counseling sometimes work is that you avoid the difficult of missions to begin to see if there's any receptivity or empathy by the parent for the problem of the victims and sometimes that opens the door to progressing further towards meaningful therapy in the caseworker in this case suggested that but apart from those clarifications of the record the key point is that it was incumbent upon the father not the court to ensure that sex offender therapy was successfully completed and the father never asked for an opportunity to do so and now he's trying to say i'm off the hook you can't take into and it if i can't say that there's any will of law or social science the says it's impossible for a father who won't admit doing anything wrong to benefit from therapy in which he doesn't have to make an incriminating admission i'm not aware of any lot of that effect i believe the literature does indicate that there are some alternative therapies out there there's no guarantee that they're always successful there's no guarantee that sex offender therapy will be successful no matter how it's pursued but there is there  available at least according to some of the the literature i've seen referred to in the in the long reviews and other materials where there is not a focus on admission there's a focus on alternative ways to try and address the problem without making incriminating i would have jack to the notion that the state has to compromise enforcement the criminal laws by granting immunity is the price for ensuring the protection of a stroller and we don't think that that is a rule of law that the courts should adopt but my point if father maintains actual innocence and doesn't need therapy is it realistic to expect that the father will come forward and say i'll go through therapy because i think i need it even though i've never you know the indications are wrong everything is  well i guess i misunderstood i didn't realize your question assumes that the father doesn't need therapy because in this case the evidence shows i think that there was a finding of prior sexual abuse there was  sexual assessment done the sex offender assessment indicated that he needed therapy that the father here doesn't dispute that he needed therapy he just disputed the fact that in the therapy that he went to the private there post finally after six sessions said he's on a cooperative and a father said that was because i denied ever doing anything wrong or that i needed any therapy in the circuit i believe he may have been charged in one case and i forget whether it's the record shows this or not but i believe that the relative minors were not willing to testify and accordingly the cases did not proceed against them just touching upon the question raised earlier i also think that that it appears that it is a privilege would not apply to the patient therapist relationship if there is an admission of even past sexual abuse so it's unlike the crime fraud exception for lawyers which deals with ongoing or future instances so we're not relying upon the protection that would have been provided by such as a privilege in this case the the  evidence in the prior case i think is is amply indicated by the record showed that the instance of sexual abuse had occurred they were offensive the father was in denial of them he was in a situation where the circuit court was on solid ground in finding both neglect and abuse the standard of review for that is manifest weight of the evidence to suggest that this record would not support that type of finding unless the court were to adopt a rule that new evidence of abuse has to exist every time the the issue of unfitness comes before a juvenile court that would be i think not something that can be overturned in this case i have a few minutes remaining and if the court has any other questions on the collateral stoppel questions or the manifest where the evidence issues for neglect or fitness or the fifth amendment issues i would urge the court to in an issue that it has never previously addressed to embrace the holding of the appellate court spoke earlier decision in l f which says there's a very fine but important distinction between ordering somebody to undergo therapy and taking into account their failure to do so on the one hand and specifically ordering a person to make admissions or way fifth amendment rights or penalizing them for failure to exercise those rights there is this middle area where if there is a ho then it is our position that it is incumbent upon the parent not the court to to seek relief from that or to prove futility but that was not done in this case and going further would create perverse incentives that we are taking thank you i want to first to respond to just this is garmin previous question the this position or specifically require that my clients successfully complete sex offender costly so wasn't an assessment in the second in this case  with respect to and i would remind the court that my client i'm a point i was point of counsel for my client at the trial level in other words he was determined to be in and as such he's not really going to be able to go hire a therapist on his own he's going to be dependent upon upon whom the court and the c f s finds for him and to that  extent that is a limiting factor in his ability to find alternative therapies so he does rely on the state d c fs to some degree to find a therapist for him that could do the therapy that would not require a my i believe i've i don't have any personal knowledge of that i've heard that there may be some counseling available were hypotheticals were present and i think my information is pretty consistent with what the state has offered but nobody nobody requested of a court that there be a search that has no i no no no i don't think anybody requested it because it was before the court it was obvious that we believe it was obvious that this case that he was not getting the third was not going to get the therapy that he needed because he had been discharged for refusing however it's presented it's clear that he was denied that record is clear it was denied for as it seems that  it in this case we were coming off of the dispositional hearing where that where the my client talked to stand and basically told the judge this is what's going on whether he should have gone beyond that and said well i'm not getting the because they're discharging me because i'm not admitting i committed this offense would you order me to go to alternative therapy i would have been nice but i don't see that it would have been necessary in this case because i think it was apparent that that had reached an impasse but i also went in that a normal situation a parent who wants to keep the child or me keep their parental rights they would try to do as much as possible and cooperate and not necessarily first of all my client i believe was cooperated as i've indicated he did a lot of the other services that he'd been asked to do this was the one service i would hear he was having trouble with because the therapist i had an obstacle perhaps a professional obstacle in terms of getting him to make a denial he said you know i wouldn't suggest that my client is particularly you know i don't think he's college educated out that he would know what alternatives are out there certainly the case state does bear some responsibility to make sure that he can get into a therapy that's going to be satisfactory to to the state it's not imposing that burn on my client to try to find a way to do  therapy i think is asking a lot of a parent and in that these kinds of situations particularly they have other services that they're being asked to do and they don't have access to necessarily information that you know we might expect them to have but so i don't know that he had a lot of options he was pretty much in his mind he was he got this attorney may not want to me may have preferred a different attorney he got a therapist and i think his experience in the case was i'm getting what i'm getting i don't really have a lot a lot of options but i want to address the you know there's a mention of alcoholics anonymous this is a situation where my client if he were in off the holiday we were going to draw analogies was sober for almost four years and now we're saying well you've got to go and you've got to do an institutionalized type of treatment program but it seems that to me yes i do and i'm not an alcoholic i don't need to i mean to you have to have him come and say that the fact that he's he's demonstrated sobriety and that in the way a sex offender allegedly would alleged sex offender would demonstrate sobriety by not really offending for nearly four years i think we can and that's why i stress that because this is a situation where you know that is the case that we're going to draw those analogies why would we put somebody in treatment if they've been sober for four years the the i believe that you know there is there is a space interested in protecting the children is compelling but it doesn't trump the fifth amendment right and i do believe that there alters i think the immunity all through as one alternative and if we find a violation of the fifth amendment can we still look at th demonstrate that there is in fact it injures environment not for another child but for this child and there's no mention or only you can you can find injuries and environment based on what a parent has done to another child doesn't have to be a child whose cases or particularly an well i think and that's where we have when we're talking i think we're we're sort of tiptoeing around the anticipatory neglect argument and strictly speaking out dentist or neglect applies strictly speaking to an offen against another sibling or neglect against another sibling and while we do have an earlier case where there was an neglect found by reason of engineers environment there was never any evidence that my client ever perpetrated against any of us on the users previous to this  s the type that would have been against this war is it so when we're talking about that and historically it really doesn't strictly apply to this case i believe that the court she had to make a decision based on the merits of this case wh before in this case because i don't believe the previous case would was helpful to determining whether the environment had been injuries for this trial and that's why i've wanted to court to to allow this to revisit the issue of sex offender  there was no medical expert who took the stand and yes in some cases the was double hearsay but it all gets in under the liberal juvenile court act just about everything seems to get in if it's certified  so we would ask that the court give some clarity in terms of what it takes to find a parent fit what is the birth of my client to be father figure whether to burn on the state to find him unfit and in this case and each case we believe that is the state's burden we believe the state's burn and find that this that that was an injures environment we don't believe it it did that so we would be asking court to reverse the appellate court decision and of course  issue i think it was an attempt to craft a remedy to try to resolve the problem but i think that you can go beyond that with the immunity giving immunity to the parent thank you thank m