No. 2--08--0065 Filed: 6-4-08

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

In re IVAN H. and MARIFER H., Minors ) Appeal from the Circuit Court

) of Lake County.

)

) Nos. 06--JA--117

) 06--JA--118

)

(The People of the State of Illinois, ) Honorable

Petitioner-Appellee, v. Jaqueline M., ) Raymond D. Collins,

Respondent-Appellant). ) Judge, Presiding.

_________________________________________________________________________________

PRESIDING JUSTICE BYRNE delivered the opinion of the court:

The grandmother of the minors, Ivan H. and Marifer H. (a/k/a Maria), reported that Maria

had been sexually abused by Jorge G., the live-in paramour of the mother, respondent, Jaqueline M.

The trial court ultimately adjudicated the minors neglected based on a finding that respondent had

not tried to prevent contact between the minors and Jorge, as directed by the Department of Children

and Family Services (DCFS). However, the court also found that the State failed to prove the

underlying sexual abuse allegations.

Respondent appeals the adjudication of neglect, arguing in various ways that the order must

be reversed because the sexual abuse allegations were based entirely on Maria's out-of-court

statements, which were neither corroborated nor subjected to cross-examination as required by

section 2--18(4)(c) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2--18(4)(c) (West 2006)).
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Respondent alternatively argues that the State failed to prove that DCFS established a safety plan,

that respondent understood it, or that she violated it.

The State does not dispute that it did not introduce evidence to corroborate Maria's alleged

outcry. Instead, the State resorts to procedural arguments. According to the State, the issue of the

hearsay's admissibility is moot because the trial court credited evidence that respondent failed to

adhere to DCFS's directive to prevent contact between Jorge and the minors. We disagree. The

State failed to show probable cause that Maria had been sexually abused, and therefore the minors

were adjudicated neglected based only on a finding that respondent did not follow a safety plan that

never should have been implemented. We reverse the order adjudicating the minors neglected.

FACTS

DCFS took the minors into temporary custody on September 12, 2006, after the Mundelein

police department submitted a hotline report that Maria had been sexually abused by Jorge, who was

living with the family. At the time of the report, Ivan was six and Maria was four.

On September 14, 2006, the State filed two petitions for adjudication of wardship based on

allegations that Jorge touched or placed his finger in Maria's vagina. The petitions alleged that Ivan

and Maria were neglected in that they had been exposed to an injurious environment (705 ILCS

405/2--3(1)(b) (West 2006)). The petitions also alleged that the minors were abused in that they

faced a substantial risk of physical injury (705 ILCS 405/2--3(2)(ii) (West 2006)). The petition

directed toward Maria additionally alleged that she was an abused minor because she had already

suffered physical injury (705 ILCS 405/2--3(2)(i) (West 2006)) and because respondent had allowed

a sex crime to be committed against Maria (705 ILCS 405/2--3(2)(iii) (West 2006)).
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At the shelter-care hearing, Robert Musial, the DCFS caseworker assigned to the family,

testified that on September 9, 2006, the Mundelein police department reported that it suspected that

Maria had been sexually abused by Jorge. According to Musial, the minors' grandmother brought

Maria to the police station that day and Detective Katie Smith interviewed Maria. Referring to a

police report, Musial testified that Maria told Detective Smith that Jorge had "touched her private

parts with his hand, and inserted his fingers into her" four times. Maria called her vaginal area

"pochita" and identified the area on a body chart. Maria specified that one instance of abuse

occurred in a bedroom while Jorge was living with the family. Maria reported that she saw

something red in her underwear one time after she had been touched or penetrated.

Musial further testified that Robert Schnabel, a child protective investigator who was on call

at the time of the report, went to the grandmother's home the next day, on September 10, 2006.

Maria was not there, so Schnabel went to Condell Hospital, where Ivan was being treated for an

infection in a broken arm. Ivan's injury was unrelated to the neglect or abuse allegations. Musial

testified that Schnabel's notes indicate that he spoke with respondent at the hospital and "told her that

[DCFS] did not want the children to have contact with Jorge during the pending report [police

investigation]." Respondent was told of the allegations, and she agreed to keep the children away

from Jorge while the allegationswere investigated. The notes indicated that Schnabel communicated

with respondent via the hospital's "interpreter line," which operates as a conference call. Respondent

and Schnabel each spoke into a telephone handset and a third party in another location translated

English to Spanish over the phone.

After Musial was assigned the case, Detective Smith told him that she had informed

respondent that the minors were not to have any contact with Jorge, and respondent had agreed to
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the directive. Musial testified that, on September 11, 2006, he was alerted to call Condell Hospital.

Musial spoke with a nurse who said that Maria, Jorge, and respondent were all at the hospital visiting

Ivan. Over respondent's objection, Musial testified that the nurse said that Jorge "told them not to

tell anybody he was there because he was in trouble with the police." The nurse reported that Ivan

was too sick to be released that evening, so respondent, Jorge, and Maria left.

The next day, on September 12, 2006, Musial went to Ivan's hospital room, where he

encountered respondent and Maria. When Musial learned that Jorge was on another floor, he told

respondent that "we needed to make a plan" because the minors were not to have contact with Jorge.

Musial used the interpreter line to communicate with respondent, but respondent acted as though she

was unaware of the allegations. When Musial pressed the issue, respondent handed him her

attorney's business card and declined to speak until counsel was present. Musial contacted

respondent's attorney and informed him of DCFS's position that Jorge should not be around the

minors.

Respondent left and spoke with Jorge for about 20 minutes, returned to Ivan's room, and

agreed to resume the conversation about the safety plan. Respondent explained that she and the

minors were moving out of the grandmother's home and into an apartment that Jorge was renting for

them. Musial said the arrangement was unacceptable, and respondent replied, "do what you are

going to do." Musial asked respondent to identify a family member with whom the minors could

be placed, but respondent refused.

On cross-examination, Musial admitted that respondent believed that the grandmother had

fabricated the allegations. At the time of the shelter-care hearing, Musial believed that Jorge had not

been charged with an offense, but the police investigation was ongoing. Maria had passed a cursory
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medical "well-being" check, but a more thorough sexual abuse exam was scheduled in two weeks.

There was no allegation that respondent or Jorge had hurt Ivan.

Without citing section 2--18(4)(c) by name, respondent's counsel asserted in closing

argument that the State had not produced sufficient evidence because there was nothing to

corroborate Maria's alleged outcry. Unpersuaded, the trial court entered written findings that

probable cause existed that the minors were neglected and abused. The court found that Maria had

reported that Jorge, who was residing with the family, had been sexually abusing her in that he

touched her vagina four times. Respondent "ha[d] refused to consider that the allegations may be

true and ha[d] refused to take part in a safety plan." It was in the minors' best interest to remove the

children from the home and place them in shelter care. The court awarded DCFS guardianship and

granted temporary custody to the minors' grandmother.

On May 23, 2007, the State amended the petitions to allege that the minors were neglected

under section 2--3(1)(b) of the Act because their environment was injurious to their welfare in that,

after DCFS established a safety plan, respondent violated the plan by allowing contact between Jorge

and the minors.

On October 9, 2007, respondent filed a motion in limine to exclude any out-of-court

statements that Maria might have made to Detective Smith. Respondent argued, as she does on

appeal, that such statements, alone, are insufficient to support a finding of neglect or abuse. See 705

ILCS 405/2--18(4)(c) (West 2006).

On November 13, 2007, the trial court resumed the adjudicatory hearing by denying

respondent's motion without comment. Detective Smith then testified that she interviewed Maria

after her grandmother brought her to the police station. Detective Smith's testimony showed that she
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was uncertain as to the date of the interview. Detective Smith testified that Maria told her that Jorge

touched her "pochita," which meant vaginal area. Maria identified the area by pointing to it on

herself and on a body chart. Vicky Dorjath, a Mundelein police department dispatcher, testified that

she translated the conversation between respondent and Detective Smith at the police station.

Following the interview with Maria, Detective Smith went to the hospital with Vorjath, who

translated a conversation between Detective Smith and respondent. No written safety plan was

established, but Detective Smith told respondent that Maria was "not to be around" Jorge.

Schnabel then testified that he used the interpreter line at the hospital to tell respondent that

the minors were not to have contact with Jorge. Schnabel believed that respondent understood the

"no-contact" condition and agreed to comply with it. However, she did not receive a copy of the

directive in Spanish, so Schnabel was not "entirely sure" whether she understood it. The record does

not contain a copy signed by respondent.

Musial then testified consistent with the testimony he offered at the shelter-care hearing.

Musial further testified that a sexual abuse medical exam conducted since that hearing disclosed no

signs of sexual abuse.

On November 13, 2007, the trial court entered an order adjudicating the minors neglected

based on respondent's noncompliance with the directive to keep the minors away from Jorge. The

court found that, on September 11, 2006, respondent met with Schnabel at the hospital, where a

safety plan was established via the interpreter line. Respondent agreed to not allow contact between

the minors and Jorge, but a few days later respondent went to the hospital with Jorge to pick up Ivan.

At that time, respondent admitted going to the hospital with Maria and Jorge twice. However, the

court expressly found that the State had failed to prove the counts in the petitions that alleged neglect
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and abuse based on the sexual abuse itself. On December 13, 2007, respondent filed a motion to

reconsider, which was denied. On January 7, 2008, the court entered an order of disposition, making

the minors wards of the court and awarding DCFS legal guardianship. This timely appeal followed.

ANALYSIS

Respondent challenges the adjudication of neglect in two ways. First, she argues that the

temporary custody order on which the adjudication is based is improper because Maria's out-of-court

statements were not subject to cross-examination and the State failed to present evidence to

corroborate her report of abuse and, therefore, there was no probable cause to grant temporary

custody to DCFS and to implement a safety plan. Second, respondent argues that the State failed

to prove that a safety plan existed, that respondent understood it, or that respondent violated it.

The State responds that (1) the issue of awarding DCFS temporary custody is moot and (2)

the evidence showed that a safety plan existed, that respondent understood it, and that respondent

violated it. We reject the State's mootness argument and conclude that no safety plan should have

been implemented because the hearsay statements regarding the abuse were neither corroborated nor

subject to cross-examination as required by section 2--18(4)(c) of the Act.

A. Probable Cause Finding at Shelter-Care Hearing

Respondent challenges the adjudication of neglect indirectly, arguing that the trial court's

probable cause determination on which the adjudication is based is not supported by the evidence.

We agree.

At a shelter-care hearing, the trial court determines whether there is probable cause to believe

that a minor is abused, neglected, or dependent. 705 ILCS 405/2--10(1), (2) (West 2006). If the

court finds probable cause, it must hear evidence and determine whether it is consistent with the
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health, safety, and best interests of the minor that he be released to his parent or placed in shelter

care. 705 ILCS 405/2--10(2) (West 2006). If the minor is to be placed in shelter care, the court must

find it a matter of immediate and urgent necessity that the minor be placed in a shelter-care facility

and find that either reasonable efforts have been made or no reasonable efforts can be made to

prevent or eliminate the necessity of removal of the minor from his home. 705 ILCS 405/2--10(2)

(West 2006). Essentially, at a shelter-care hearing, the court determines whether a minor requires

temporary placement outside the home. In re Austin D., 358 Ill. App. 3d 794, 801 (2005).

Respondent argues that the State failed to prove abuse or neglect at the adjudicatory hearing

because the State's evidence at the shelter-care hearing was limited to Maria's out-of-courtstatements

that Jorge had touched her "pochita." Section 2--18(4)(c), which governs the use of a minor's

hearsay statement to determine abuse or neglect, provides as follows:

"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." 705 ILCS 405/2--18(4)(c) (West 2006).

The Appellate Court, First District, has held that section 2--18(4)(c) applies to shelter-care

hearings as well as adjudicatory hearings. In re M.B., 241 Ill. App. 3d 697, 706 (1992). The State

concedes that Maria's out-of-court statements were neither corroborated nor subject to crossexamination at the shelter-care hearing. However, the State argues that M.B. was wrongly decided

because an adjudication of neglect or abuse requires proof by a preponderance of the evidence (705

ILCS 405/1--3(1) (West 2006); In re C.S., 376 Ill. App. 3d 114, 117 (2007)), while a temporary

custody order from a shelter-care hearing requires only a showing of probable cause (705 ILCS
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405/2--10(1), (2) (West 2006); Austin D., 358 Ill. App. 3d at 801). We decline to depart from M.B.,

because section 2--18(4)(c) refers to a "finding of abuse or neglect" generally. The section does not

distinguish between shelter-care hearings and adjudicatory hearings, and we will not conjure such

a distinction where the General Assembly did not intend one. See People v. Hari, 218 Ill. 2d 275,

292 (2006) ("It is never proper for a court to depart from plain language by reading into the statute

exceptions, limitations, or conditions which conflict with the clearly expressed legislative intent").

The State next argues that the sufficiency of the evidence presented at the shelter-care hearing

is moot because "there is no relief available to respondent-mother regarding the temporary custody

order at this point." We doubt that the issue is moot, but, even if it is, we should consider it under

the public interest exception to the mootness doctrine.

It is a basic tenet of justiciability that reviewing courts will not decide moot or abstract

questions or render advisory opinions. In re J.T., 221 Ill. 2d 338, 349 (2006). "An appeal is

considered moot where it presents no actual controversy or where the issues involved in the trial

court no longer exist because intervening events have rendered it impossible for the reviewing court

to grant effectual relief to the complaining party." J.T., 221 Ill. 2d at 349-50. In this case,

respondent has identified the reversal of the adjudication of neglect as the effectual relief that would

cure error in the shelter-care hearing.

In any event, a reviewing court may nevertheless review an otherwise moot issue pursuant

to the public interest exception to the mootness doctrine. J.T., 221 Ill. 2d at 350. Application of the

public interest exception requires (1) the existence of a question of public importance; (2) the

desirability of an authoritative determination for the purpose of guiding public officers in the

performance of their duties; and (3) the likelihood that the question will recur. This exception to the
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mootness doctrine is to be construed narrowly and requires a clear showing of each criterion. J.T.,

221 Ill. 2d at 350. Here, the application of section 2--18(4)(c) of the Act to shelter-care

proceedings is a matter of public importance, circuit court judges will benefit from guidance in

making probable cause determinations based on out-of-court reports of sexual abuse, and other

uncorroborated outcries of sexual abuse could cause this issue to recur. Even the most deferential

review of the trial court's factual findings reveals that the court misapplied section 2--18(4)(c) of the

Act. Section 2--18(4)(c) barred the finding of neglect in that Maria's hearsay report of sexual abuse,

while admissible, was not sufficient in itself to support the probable cause finding of neglect,

because the hearsay was uncorroborated and notsubject to cross-examination. See 705 ILCS 405/2--

18(4)(c) (West 2006); M.B., 241 Ill. App. 3d at 706.

B. Adjudication of Neglect

Next, we review the adjudication of neglect in light of the State's failure to establish probable

cause at the shelter-care hearing. "Neglect" is the failure to exercise the care that circumstances

justly demand, and it encompasses both willful and unintentional disregard of parental duty. In re

Gabriel E., 372 Ill. App. 3d 817, 822 (2007). Pursuant to section 2--3(1)(b) of the Act, a "neglected

minor" includes any child under age 18 whose environment is injurious to his welfare. An "injurious

environment" is "an amorphous concept that cannot be defined with particularity, but has been

interpreted to include the breach of a parent's duty to ensure a safe and nurturing shelter" for her

children. Gabriel E., 372 Ill. App. 3d at 822-23. This is because our courts have consistently

recognized that a parent has a duty to keep her children free from harm. Gabriel E., 372 Ill. App. 3d

at 823.
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The terms "neglect" and "injurious environment" do not have fixed and measured meanings

but, rather, are defined in the context of the particular circumstances of each case. Therefore, each

case involving such allegations is sui generis and must be decided on its unique facts. The State has

the burden of proving the allegations by a preponderance of the evidence. A trial court's finding of

neglect based on an injurious environment will not be reversed unless the finding is against the

manifest weight of the evidence. Gabriel E., 372 Ill. App. 3d at 823.

At the adjudicatory hearing, the trial court expressly found that the State did not prove the

underlying sexual abuse allegations by a preponderance of the evidence. Thus, the court's

adjudication of 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. When determining the best interests of a minor, a circuit court is not limited only to

considering the parent's compliance with DCFS service plans (In re Stephen K., 373 Ill. App. 3d 7,

26 (2007); In re Edward T., 343 Ill. App. 3d 778, 800 (2003)), but in this case the court focused only

on respondent's noncompliance with the plan, regardless of the reasons for instituting it. The hearsay

evidence of sexual abuse was insufficient in itself to support a finding of neglect, and the State

presented no other evidence that Ivan or Maria was in an injurious environment.

CONCLUSION

We reject the State's position that the insufficiency of the evidence at the shelter-care

proceeding is immaterial to the adjudication of neglect. The trial court's probable cause

determination was the foundation on which any safety plan could be built. If we were to adopt the

State's position, a flimsy allegation of abuse could be the basis for instituting an onerous safety plan,
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the noncompliance with which would trigger an adjudication of neglect, which is very serious.

While the best interests of the minors is paramount, adjudicating Ivan and Maria neglected based on

respondent's noncompliance with an unfounded safety plan prejudiced respondent and the family as

a whole. Under these circumstances, we conclude that the trial court's finding of neglect is against

the manifest weight of the evidence, and we reverse the order adjudicating the minors neglected.

Reversed.

McLAREN and CALLUM, JJ., concur.