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

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ In re IVAN H. and MARI

FER H., Minors ) Appeal from the Circuit Court

) of Lak e C ou nt y. ) ) Nos. 06--JA--117 ) 06--JA--118 ) (The Peo ple of the State of I llinois, ) Honorab le Petitioner-Appellee, v. Jaqueline M., ) Ray mond D. Coll ins, Respondent-Appellant). ) Judge , Pres idin g.

___________________________________________ __________

___________________________ _ PRESID ING

JUSTICE

BYRNE de livered

the opinion of the c ourt: The grand

mother of the minors , Iva

n H. and Ma

rif er H . (a/k/a

Maria), reporte d that Mar ia had been sexually abused by

Jorge G., the live-in paramour of the mother, respondent, JaquelineM. The trial court ultimately adjudicate d the minors neglected based on a finding that respondent had nottried to prevent contact between the minors and Jorge, as directed by the Department of Children and Family Service s (DCFS). However, the court also found that the State failed to pr ove the underly ing sexua l abuse a llegat ions. Respondent

appeals the adjudication

of neglect, arguing

in various ways that the or der must be reversed because the sexual abuse alleg ations we re based entirely on Maria's out-of-court statemen ts, which were neither corrob o rated nor subjected to cross-examination as required by section2--18(4 )(c) of

the Juvenile

Court Act

of 1987 (Act) (705 IL CS 405/2-- 18(4)(c ) (West 2006)).No. 2--08--0065

-2-

Respondent alternatively a rgues that the State failed to prove that DCFS established a safety plan, that resp ondent understood it, or that she viola ted it. The State does not dispute that it did not introduce evidence to corroborate Maria' s alleged

ou tc ry. Instead, the State resorts to proce dural arguments. According to the State, the issue of the hearsa y's admissibil ity i s moot bec ause the trial cou rt c reditedevidenc e that re spondent f ailed to adhere to DCFS's directive to pr event contact between Jorge and the minors. We disagr ee. The State failed

to show probable cause that Maria had been se xually abused, and theref ore the minors

were adjudicated neglected based only on a f

inding that respondent did not follow a safety plan that never should have been implemented. We reverse the order adjudicating the minors neglec ted. FACTS DCFS took the minors into temporary custody on Septemb er 12, 20 06, afte r the Mund

elein police departm ent submitt ed a hotli ne repor t that Mar ia had been sexually abuse d by Jorge, who wa s living with the family. At the time of the r eport, Ivan was six and Maria wa s four. OnSeptember 14, 2006, the State filed two petitions for adjudication of wardship based on allegations that Jorg e touche d or plac ed his finger in Maria's vagina. The petitions alleged that Iva n and Maria were neglecte d in that they had bee n exposedto an i njurious e nvironme nt (705 I LCS 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 IL CS 405/2--3(2)(i i) (West 20 06)). The petition directed toward Ma

ria addi tionally allege d that she was an abused minor because she had a lready suffered physical injury

(705 I LCS 405 /2--3(2 )(i) (We st 2006)) and because respondent had allowe d a sex crime to be committed against Maria (705 I LCS 405/2--3(2)(iii) (West 2006)).No. 2--08--0065

-3-

At t he shelte

r-car e heari ng, Robe rt Musial, the DCFS c asewor ker assi gned to

the famil y , testified that on September 9, 2006, the Mundelein police department reported that it suspected that Maria had bee n sexually

abused by Jorge . According to Musial, the minors' gra ndmother brought Maria to the polic e station t

hat day and Dete ctive Ka

tie Smit h intervi ewed Maria. Referring to a police report, Musial testified that M aria t old De tecti ve Sm ith t hat J orge had "tou ched he r private parts with his hand, a nd 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 ins tance of a buse occurred in a bedroom while Jorge was living with the family . Maria rep or ted that she saw something red in her underwear one time after she had been touched or pene trated. Musial further testified that Robert Schnabe l, a child

protect ive inves tigator

who was o n call at th e time of the report, went to the grandmother' s home the next day, on September 10, 2006

. Maria was not the

re, so Sch nabel we nt to Conde ll Hospital, where Ivan was be ing treated for an infection in a broken arm. Ivan's injury was unrela ted to the neglect or abuse alleg ations. Musial testified that Schna

bel's no tes indica

te that he spoke with

respondent at

the hospital and "told her that [DCFS] did not want the children to have con tact w ith Jorge during the pending report [police investigation]." Respondent was told of the allegations, and she ag reed to keep the children away fromJorge while t

he allegations were investigated. The notes indicated that Schnabel communicated with respondent via the hospital's "interpreter line," w hich oper ates as a confer ence ca ll. 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, Detect ive Smith told him that she had informed respondent

that the minors were no t to have a ny c ontact wi

thJorge, a

nd respon dent had a

greed toNo. 2--08--0065

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the directiv e. Musial

testifie d that, on Septemb er 11, 20 06, he wa s alerte d to call Condell Ho spital. Musial spoke with a nurse who said that Maria, Jorge, and respondent were all at the hospital visiting Ivan. Over re spondent's objection, Musial testified that the n urse sai d that Jorg e "told

them not to tell any body he was th ere bec ause he was in trou ble with the police." The nurse reported that I van was too sic

k to be re leased t

hat even ing, so r esponde nt, Jorge , and Mar

ia left. The next day, on September 1 2, 2006, Mus ial went to Ivan's hospital room, whe re he encountered respondent

and Maria. When Musial learned that Jorg e was on a

nother f loor, he t old respondent

that "we needed to make a plan" because the minors

were no t to have c ontact wi thJorge. Musial used the interpreter line to communicate with respondent, but respondent acte d as though she

was unaware of the allegations. When Musial pressed the issue, respondent handed him her attor ney's businesscard an d declined to speak until counsel was present. Musial contacted respo ndent 's attorne

y a nd inform ed him of D CFS's po sition that Jorge sho

uld not be around the minors. Respondent

left and s pok e with Jorge for about 20 minutes, returned to I van's room, and agreed to resume the conversation about t he safety

plan. Respondent explained that she and the minors were moving

out of the grandmother's home and into an a partment that Jorge was renting for them. Musial sai d the arr angeme nt was una

ccepta ble , and respo ndent replied, "do what y ou are going to do." Musial ask

ed respondent to id

entify a family member w

ith whom the

minors co

uld be placed, but respondent refused. Oncross-examination, Musial admitted that respondent believed that the grandmother ha d fabricated the allegations. At the time of the shelter-care hearin g, Mus ial be lieve d that Jorge had not been charged with an offense, but the police investigation was ongoing. Maria ha d passed a cursoryNo. 2--08--0065

-5-

medical "well-being" check, but a more thor

ough sexual abuse

exam was sc

heduled i n two weeks. There was no allegation that respondent or Jorge had hurt Ivan. Without citing sect ion 2--18(4)(c) by name, respondent's counsel asserted in closing argument that the State had not produced sufficient e vidence

because there wa s nothing

to corroborate Maria's alleged outcry . Unpersuaded, the trial courtentered written findings that probable cause existed that the minors were neglected a nd abused. The court found that Maria had reported that Jorg e, who wa s residing with the f

ami ly, 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 gua rdianship and granted temporary

custody to the minors' g

randmother. OnMay 23, 2007, the State amende d the petitions to allege that the minors were negle cted under section 2--3(1)(b) of the Act because their environm

ent was in jurious to t

heir wel fare in

that, after DCFS esta

blished a safety plan, respondent

viol ated t he pla n by allow ing con tact b etween Jorge and the mi

nors. OnOctober 9, 2007, respondent fi led a motion in limine to exclude any out-of-c ourt statemen ts tha t Mari a migh t have made to Detective Smith. Respondent argued, as she doe s on appeal, that such statements, alone, are insufficient to support a finding of neglect or

abuse. See 705 IL CS 405/2--18(4)(c) (West 2006). OnNovembe

r 13, 2007 , the tria

l court re su med the ad

judicatory hea

ring by de

nying respo ndent 's motion withoutcomment. Detecti ve Smith the

n testifie d that she

intervie wed Mar ia after her grand mother br ought he r to the police station. Detective Smith's testimony showe d that sheNo. 2--08--0065

-6-

was uncertain as to the date of the interview. Detect ive S mith testi fied t hat Ma ria to ld her that J orge touched her "po chita," which mea nt vaginal area . Maria id entified the are a by

pointing to it on herself and ona body cha

rt. Vicky Dorja

th, a Mundelein police department dispatcher, testified that she translat

ed the conversat

ion betwe en respondent a n d Detective Smith at the police station. Following the interview with Maria, Detective Smith went to the hospital with Vorjat h, w ho translated a conversation between Detective Smith and respon dent. 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 interpre ter line a t the hospi

tal 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. Howe ver, she did n ot receive a copy of the directive in Spanish, so Schnabel was not "entirely sure" whether she understood it. The rec ord does not conta in a copy signed by r

esponde nt. Musial then testi fied con sistent wit h the te stim ony he offe red at t he she lter- care hea ring. Musial further testified

that a se xual abuse

medical exam conducted since that hearing disclosed no signs of sexual abuse. OnNovember 13, 2007, the trial court entered an order adjudica ting the minors neglected based on respondent's noncompliance with the directive to keep the minors away fr om Jorge. The court found that, on September 11, 2006, res ponde nt 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 day s later respondent went to the hospital with Jorge to pick up I van. At that time, respondent admitted going to the hospital with Maria and Jorge twice. However, the court expressly found tha t the State had failed

to prove the counts in the petitions that alleged neglectNo. 2--08--0065

-7-

and abuse based on the sexual abuse itself. On December 13, 2007 , respond ent 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 leg al guardianship. This timely appeal followed. ANA LYSIS Respondent

challen ges the adjudica tion of ne glect i

n two way

s. First, she arg

ues th at the temporary

custody order on which the adjudica tion is based isimproper because Maria's out-of -court statemen ts were no t subject t

o cross- examination and the S tate fai led to pre sent evid ence to corroborate her report of abuse an d, therefo re, there was no probable cause to g rant temporary custody to DCF S and t o implement a safety pla n. Second, respondent argues that the State failed to prove t hat a saf ety plan existe d, that re spondent u nderstoo d it, or tha

t respond ent viola ted it. The State respo nds that (1 ) the issue o f awarding DCFS temporary c ustody 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-e xamination a s requir

ed by section 2 --18(4) (c) of the Act. A. Probable Cause Finding at Shelter-Care He aring Respondent

cha l lenges the ad

judi catio n of ne glect i ndire ctly, argu ing th at 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 p robable cause to believe that a minor is a

bused, ne glecte d, or dep endent. 7 05 IL CS 405/2-- 10(1), ( 2) (West 20 06). I f th e court finds probable cause, it must hear ev idence and determine whether it is consistent with theNo. 2--08--0065

-8-

health, safety, a

nd best interests of the minor that he be relea sed to h is parent or placed in shelter

care. 705 I LCS 405 /2--10( 2) (West 20 06). I f the minor is to be pla

ced in she lter car

e, the co urt must find it a matter of immediate and urgent necessity that the minor be placed

in a shelte

r-car e facili ty and find that either reasonabl e efforts have be en made or no rea sonable e fforts c an be mad e to prevent or eliminate the necessity of removal of the minor from his home. 705 IL CS 405/2--10(2) (West 2006). Essentially, at a shelter -care hearing, the

court determines whether a minor requires temporary pla

cement 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-c are hearing was limited to Maria' s out-o f-court statem ents that Jorge had touched her "pochita. " Se ction 2--18 (4)(c) , whic h gover ns th e use o f a min or's hearsa y st atement t o determ ine abuse or neg lect, pr

ovides as follows: "Previou s statemen ts made by the minor rela ting to any a

llegations of abuse or neglect shall be admissible in evidence. However, no such stat ement, if uncorroborated and notsubject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect." 705 I

LCS 405/2--18(4)(c) (West 2006). The Appellate Court, First District, has held that section 2--18(4)(c) applies to shelter-care hearin gs as well a s adjudic atory hearing s. In re M.B. , 241 Ill. App. 3d 697, 706 (1992). The State concedes th at Maria's out-o f-cour t stateme nts were neither corroborated nor subjec t to crossexamination at the shelter-care hearing . However, the State argues that M.B. was wrongly decided because an adjudication of neglect or abuse r equires proof by

a preponderance of the

evidence (705 IL CS 405/1 --3(1) (West 2006 ); In re C.S. , 376 Ill. App. 3d 114, 117 (2007)), while a tempora ry custody order from a s helter- care he aring r equires only a showing

of proba ble caus e (705 I

LCSNo. 2--08--0065

-9-

405/2--10(1), (2) (West 2006); Austin D. , 358 I ll. App. 3d

at 801). We

decline to depar t from M.B. , because section 2--18(4)(c) refers to a "finding of abuse or neglec t" generally . The section does not distinguish between shelter-care hea rings 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 f or a cour t to depar t from pla inlangua ge by reading into the sta

tute exception s, limitations, or conditions which conflict with the clearly e xpressed legislative intent"). The State next a

rgues that th e sufficiency

of the evidence presented at the shelter- care hearing is moot because "there is no relief ava ilable to respondent-mother regarding the temporary

custody order a t this point." We

doubt that

the issue is moot, but, even if i

t is, we should consider it under the public interest exception to the mootness doctrine. It is a basic

tenet of justiciab ility

that reviewing

courts wi ll not d ecide moot or abstract ques tions or render advisory opinions. In re J.T. , 221 Ill. 2d 338, 349 (2006). "An appe a l i s considered

moot where it presents no actual controv ersy or whe r e the issues involved in the trial court no longe r exist bec ause inte

rvening events have rendered it impossible for the reviewing court to grant effectual relief

to the compl aining party." J.T. , 221 Ill. 2d at 349-50. I n this case, respondent

has identified the reversal of the adjudication of negle ct as the eff ectual r elief tha t would

cure er ror in the sh elter -care h earing. 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 ex cept ion requires (1) the existence of a question of public importance; (2) the desirab ility

of an aut

horitativ e deter

mination f

or the pur

pose of guiding public officers in the performance of their duties; and (3) the likelihood that the question will recur. This exception to theNo. 2--08--0065

-10-

mootnessdoctrine 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 Ac t to sh elt er-car e procee dings is a matte

r of publi c importa

nce, cir cuit cour t judges will bene fit from g

uidance in making probable cause determinations based on out-of -co urt reports of sexual abuse, and other uncorroborated

outcries of sexual abuse co uld cause this issue t

o 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 hear say repor t of sexual abuse, while admissible, was not sufficient in itself to support the prob ab le cause finding of neg lect, because the hearsay

was uncorroborated and n ot su bject to cross-examination. See 705 IL CS 405/2-- 18(4)(c ) (West 200 6); M.B. , 241 Ill. App. 3d at 706. B. Adjudication of Neglect Next, we review the adjud icati on of n eglect in li ght of t he St ate's failure to establi sh probab le

cause at the shelter-c are hearing. "Neg lect" is the failure to exercise the care that circumstances justly demand, a

nd 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 a

morphous c oncept that canno t b e defined wi th particularity, but has bee n in ter preted to include the breach of a parent' s duty to ensure a sa fe and nurturing shelter" for her children. Gabriel E. , 372 Ill. App. 3d at 822-23. This is because ou r co urts have

consiste ntly recognized

that a pa rent has a duty to keep he

r childre n free f rom harm. Gabriel E. , 372 Ill. App. 3d at 823.No. 2--08--0065

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The terms "neglect" and " injurious environment" do not have fixed and measu red mea nings but, rather, are defined in the context of the particular circumstances of each case. Therefor e, each

caseinvolving such alle gations is sui gener

is and must

be decided on its unique facts. The State has the burden of proving

th e a ll eg at io ns by a preponderance of the evidence . A trial court's finding of neglect based on an injurio

us envir onment 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 adjudica

tory hearing , the tria

l court e xpressly

found tha

t the State

did not prove the underlying

sexu al abu se all egatio ns by a prep onder ance of the ev idenc e. Thu s, th e court 's adjudicationof neglect was based entirely on a finding that respondent had failed to keepthe minors away from J orge as d irect ed by the s afety plan , even thou gh the defe cts in the shelter-care hearing meant that ther e was insu

fficien t evidenc e of sexua

l abuse to warran t imposing

the plan i n the firs t place. When dete

rmining the best in

te rest s of a mino r, a cir cuit cour t is not limite d only

to consideringthe pare

nt's com pliance with DCFS s ervice

plans ( Inre 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 responde

nt's noncompliance with th e plan, r egard less of the reasons for instituting it. The hearsay evidence of sexual a

buse was i nsuffic ie nt in itself

to support

a finding of neg lect, an

d the State present ed no othe

r eviden ce that I van or Ma

ria was i n an injur ious envir onment. CONCLUSIO

N We reject the State's position that the ins ufficiency of the evidence at the shelter-car e proceeding

is immaterial to the adjudica tion of ne glect. The tria l court' s probabl e cause determination

was the foundation on which any safety plan

could be built. If we were to adopt the Stat e's position, a flimsy allegation of abuse could be t

he basisfor instituting an onerous safety plan,No. 2--08--0065

-12-

the noncompliance with which would trigger a n adjudication of neglect, which is very ser i ous. While the best interests of the minors is paramo unt, adjud icating Iva n and Mar ia neglected based on respo ndent 's noncompli ance wi than unfounded safety

planprejudiced respondent and the family as

a whole. Under th ese circumst ances, we conclu

de that th e trial c ourt's f

inding of neglec t is aga inst the manifest weight of the evidence, and we reverse the order adjudicating the minors neglected. Reversed. McLAREN and CAL

LUM, JJ., concur.