{ "id": 3718417, "name": "In re K.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Kevin S., Respondent-Appellant)", "name_abbreviation": "People v. Kevin S.", "decision_date": "2003-08-27", "docket_number": "No. 2\u201402\u20140861", "first_page": "177", "last_page": "202", "citations": [ { "type": "official", "cite": "343 Ill. App. 3d 177" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "312 Ill. App. 3d 800", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411565 ], "year": 2000, "pin_cites": [ { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0800-01" ] }, { "cite": "336 Ill. App. 3d 606", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599268 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "614" }, { "page": "614" }, { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0606-01" ] }, { "cite": "196 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351282 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "184, 218" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0181-01" ] }, { "cite": "338 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25436 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ill-app-3d/338/1027-01" ] }, { "cite": "313 Ill. App. 3d 890", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186480 ], "year": 2000, "pin_cites": [ { "page": "892" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0890-01" ] }, { "cite": "123 Ill. 2d 233", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5551185 ], "year": 1988, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0233-01" ] }, { "cite": "76 Ill. App. 3d 587", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3278210 ], "year": 1979, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0587-01" ] }, { "cite": "293 F. 1013", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 11720199 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/f/293/1013-01" ] }, { "cite": "313 Ill. App. 3d 121", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186552 ], "weight": 7, "year": 2000, "pin_cites": [ { "page": "126" }, { "page": "126" }, { "page": "126-27" }, { "page": "127" }, { "page": "127" }, { "page": "132" }, { "page": "126" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0121-01" ] }, { "cite": "276 Ill. App. 3d 672", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927585 ], "year": 1995, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/0672-01" ] }, { "cite": "331 Ill. App. 3d 220", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209171 ], "year": 2002, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0220-01" ] }, { "cite": "331 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209188 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "597-98" }, { "page": "596", "parenthetical": "where the child fit the definition of a neglected minor whose environment was injurious \"by reason of respondent mother's actions and respondent father's inactions in failing to correct the conditions of which he was aware\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0591-01" ] }, { "cite": "294 Ill. App. 3d 780", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35352 ], "year": 1998, "pin_cites": [ { "page": "789" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/294/0780-01" ] }, { "cite": "271 Ill. App. 3d 820", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249163 ], "year": 1995, "pin_cites": [ { "page": "828" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/271/0820-01" ] }, { "cite": "228 Ill. App. 3d 609", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5219768 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "616" }, { "page": "616" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/228/0609-01" ] }, { "cite": "198 Ill. 2d 309", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29948 ], "year": 2002, "pin_cites": [ { "page": "332-33" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/198/0309-01" ] }, { "cite": "336 Ill. App. 3d 606", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599268 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "614-15" }, { "page": "614" }, { "page": "615" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/336/0606-01" ] }, { "cite": "196 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351282 ], "weight": 10, "year": 2001, "pin_cites": [ { "page": "214" }, { "page": "214" }, { "page": "213-14" }, { "page": "214" }, { "page": "214" }, { "page": "214" }, { "page": "184" }, { "page": "184" }, { "page": "184" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/196/0181-01" ] }, { "cite": "338 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25436 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "1042", "parenthetical": "Kapala, J., dissenting" }, { "page": "1034" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/338/1027-01" ] }, { "cite": "76 Ill. App. 3d 587", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3278210 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "594" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/76/0587-01" ] }, { "cite": "293 F. 1013", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 11720199 ], "weight": 2, "year": 1923, "pin_cites": [ { "page": "1014" } ], "opinion_index": 1, "case_paths": [ "/f/293/1013-01" ] }, { "cite": "313 Ill. App. 3d 121", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186552 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "127" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/313/0121-01" ] }, { "cite": "331 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209188 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "593" }, { "page": "596" }, { "page": "596" }, { "page": "596" }, { "page": "597-98", "parenthetical": "\"the conditions of a dispositional order need not relate solely to the grounds for adjudication of wardship\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/331/0591-01" ] } ], "analysis": { "cardinality": 1597, "char_count": 68374, "ocr_confidence": 0.731, "pagerank": { "raw": 8.932731278712958e-08, "percentile": 0.500891943893254 }, "sha256": "ae90b1828df338132b7ac3eba8db3feaba702458a294c5f3ce90d01c0fe08b58", "simhash": "1:2bbe1d2e3bd855d4", "word_count": 11590 }, "last_updated": "2023-07-14T15:02:30.760533+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HUTCHINSON, EJ., concurs." ], "parties": [ "In re K.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Kevin S., Respondent-Appellant)." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nRespondent, Kevin S., appeals from the trial court\u2019s adjudication of neglect and the dispositional order in the neglect proceedings regarding his daughter, K.S. We reverse.\nOn January 16, 2002, the State filed a three-count petition for adjudication of wardship and temporary custody of K.S. Counts I and II, alleging neglect and abuse, respectively, related to KS.\u2019s mother, Valerie C., and her alleged role in the murder of K.S.\u2019s sibling, Baby Boy C., on January 13. Count III alleged that K.S. was an abused minor in that respondent, the paramour of K.S.\u2019s mother, committed a sex offense against T.V, another sibling of K.S., by attempting to place TV\u2019s hand on his penis. The trial court found an immediate and urgent necessity to remove K.S. from the home and place her in a shelter care facility and granted temporary guardianship to the Department of Children and Family Services (DCFS).\nOn April 11, the State withdrew counts I, II, and III and filed an additional count IV alleging that K.S. was neglected in that her mother failed to protect her by failing to follow the safety plan of DCFS. Valerie C. stipulated to a factual basis for count IV and that the evidence would prove that K.S. was neglected. The State represented that, if called, DCFS caseworker Evelyn Martinez would testify that she was involved in the investigation of the alleged sexual abuse of T.V On June 12, 2000, she discussed the safety plan with Valerie and told her that respondent could not have contact with any of her children and could not live in their house. On October 25, 2000, she told Valerie that she was going to recommend that the case be indicated and reiterated that the safety plan was still in effect. Sometime after that, Martinez learned that respondent had been living in the house with Valerie and her children. The court was also told that the criminal case against respondent, which arose from the allegation that he had sexually molested T.V, had been dismissed in January 2000.\nThe court found K.S. neglected based upon \u201cthe factual basis as presented and agreed upon by Ms. Hayward [Valerie\u2019s attorney] and her client and the State.\u201d The court then ordered a social history investigation and ordered respondent to undergo a sexual offender\u2019s evaluation. Respondent, through his counsel, stated as follows:\n\u201cJust so it is clear on the record, my client is not admitting or stipulating to anything. My client\u2019s criminal case was dismissed. In talking with my client[,] I don\u2019t feel as his advocate that that sex offender evaluation is necessary because that charge was dismissed, and he has adamantly denied it from day one.\nI want the record to show that he doesn\u2019t want the child to be adjudicated neglected, and that the criminal case has already been disposed of. He was already incarcerated for that. The case was dismissed. And we don\u2019t feel that it is appropriate.\u201d\nThe trial court responded that respondent \u201cabsolutely can persist in his denial, but the evaluation is going to be ordered. *** I am going to order that you follow through with that because I have to make sure that [K.S.] is safe.\u201d\nOn June 28, 2002, the case proceeded to a dispositional hearing. The social history investigation, prepared by Catholic Charities, stated that DCFS had become involved with the family when T.V and her cousin reported that respondent \u201chad fondled them and sexually molested them.\u201d However, the case was closed when Valerie \u201cagreed to a safety plan, and reported that she would not allow any contact between her children\u201d and respondent. According to the report, respondent stated that \u201cthe girls lied about the incidents,\u201d and he \u201chas denied any responsibility for the sexual molestation report that was indicated by DCFS in 2000.\u201d Catholic Charities concluded that such denial \u201cmay indicate that [respondent] does not fully understand the children\u2019s needs\u201d and further characterized respondent as \u201cin denial about his responsibility\u201d in the DCFS case. Respondent was \u201creluctant to comply with services\u201d regarding the sexual molestation charge. The report did note that respondent\u2019s only criminal conviction was of deceptive practices. However, the report concluded that respondent \u201cneeds to acknowledge his role in the previous DCFS allegation of sexual molestation, which was indicated. He needs to complete a sexual offenders assessment, and follow all recommendations of the assessment.\u201d At the dispositional hearing, respondent continued to deny any wrongdoing and asked that he not be ordered to complete sexual offender assessment and counseling.\nThe trial court found K.S. to be a neglected minor, made her a ward of the court, and gave legal guardianship to DCFS. Addressing respondent, the court stated:\n\u201cOkay. Here is the situation, and just so you understand, Mr. [S.], I have to look at what is in the best interest of the children.\nThe issue is not whether the criminal case was dismissed or not. I have no idea why it was dismissed. I have no doubt that it was. I don\u2019t even know if it was the same complaining witness. But the issue now is that one of the children says that you sexually molested her. That may not be true. All the more reason to follow through with this evaluation and see what they say. They will be reviewing the reports. They will be reviewing the statement to see if there was a recantation, whatever the situation is. I don\u2019t know from what I can see here. But what I can tell you, there is a founded report. There was a statement made by one of the girls. And that you are the father of a young girl, and that I have to make sure that she is protected. So I am going to order the sexual offender evaluation within the next 30 days.\u201d\nRespondent filed a motion to reconsider, which was denied by the trial court. This appeal followed.\nRespondent first contends that the trial court erred in ordering him to complete a sexual offender evaluation and follow the resulting recommendations. The conditions of a dispositional order must have some basis in the evidence. In re Chyna B., 331 Ill. App. 3d 591, 597-98 (2002). On review, a trial court\u2019s dispositional determination will be reversed only if the court\u2019s findings of fact are against the manifest weight of the evidence or if the court committed an abuse of discretion by selecting an inappropriate dispositional order. In re J.P., 331 Ill. App. 3d 220, 238 (2002).\nThe complete lack of evidence against respondent in this case leads us to conclude that the trial court\u2019s dispositional order was both an abuse of discretion and against the manifest weight of the evidence. The court heard nothing except rank tertiary hearsay regarding the allegations of a sexual offense committed by respondent. At the time that the court found count IV to be proved, it had heard nothing except what Valerie stipulated that DCFS caseworker Martinez would testify to if she were called to testify. In that stipulation, it was stated that Martinez would testify that she was involved in an investigation of the allegation that respondent molested T.V and that DCFS\u2019s \u201csafety plan\u201d prohibited respondent\u2019s presence in Valerie\u2019s house. It was the violation of this safety plan that formed the basis of the court\u2019s finding of neglect. However, the court also heard that the criminal case against respondent, which arose from the same allegations of sexual molestation, was dismissed, as was count III of the petition in this case, which was based on the same allegations. The Catholic Charities report included the statement that the DCFS report regarding the molestation allegations was \u201cindicated.\u201d However, respondent consistently denied the allegations, and the Catholic Charities report noted this fact.\nThe trial court never heard any direct evidence that respondent had committed any sexual offense; the evidence was only a stipulation by a third party, the mother, and a report about a report containing such allegations. While the DCFS report was \u201cindicated,\u201d such a designation means only that \u201ccredible evidence\u201d of abuse or neglect has been found by DCFS. See S.W. v. Department of Children & Family Services, 276 Ill. App. 3d 672, 674 (1995). On the other hand, the court knew that the State had dismissed the criminal charges against respondent and withdrawn the abuse allegations based on that same incident, and that respondent had always denied the allegations. At an adjudicatory hearing, the State must prove allegations of neglect by a preponderance of the evidence. In re S.S., 313 Ill. App. 3d 121, 126 (2000). Reference to a DCFS report of \u201ccredible evidence\u201d was an insufficient basis for ordering respondent to undergo a sexual offender evaluation. \u201cCredible evidence\u201d is a term of art; labeling evidence as credible in no way denotes that the evidence comports with rules of evidence or procedural due process. The dissent accords this \u201ccredible evidence\u201d too much gravity. A finding by a DCFS worker, as capable as the worker may be, does not obviate the need for the State to prosecute an alleged offense and a judge to find that an offense was committed.\nThe trial court in this case abdicated its role as fact finder, as is evidenced by its explanation of its order to respondent:\n\u201cThe issue is not whether the criminal case was dismissed or not. I have no idea why it was dismissed. I have no doubt that it was. I don\u2019t even know if it was the same complaining witness. But the issue now is that one of the children says that you sexually molested her. That may not be true. All the more reason to follow through with this evaluation and see what they say.\u201d (Emphases added.)\nThe State attempts to bolster that explanation with the following argument:\n\u201cArguably, in the instant matter, the trial court assumed that the Respondent was a sex offender who posed harm to K.S. because without a related evaluation, it had no other course of action consistent with the best interests of K.S.\u201d (Emphasis added.)\nWe note that if count III had not been withdrawn, an adjudicatory hearing would have been a proper and acceptable course of action to determine if respondent was a sex offender. Be that as it may, trial courts are to base decisions on evidence, not assumptions. The absence of evidence is not \u201c[a]ll the more reason\u201d to order a parent to submit to a sexual offender evaluation and possible counseling. Respondent was never given a hearing at which witnesses testified, with the opportunity to cross-examine witnesses and present his own evidence. The State foreclosed this possibility when it dismissed the criminal charges and withdrew the abuse allegations against respondent in count III. Instead, the court ordered the evaluation without any evidence closer than third-hand reports, and it relied on the sexual offender evaluation to prove whether respondent was guilty of the claimed sexual offenses. In addition to the trial court\u2019s error of ordering the evaluation at all, we must point out the fallacy of the court\u2019s reasoning. We are unaware of any authority that has determined, pursuant to Frye, that such an evaluation may be so utilized. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Completion of the evaluation would not establish whether respondent sexually molested TN Respondent denied the allegation. In the absence of an admission or stipulation by respondent, only an evidentiary hearing could determine that respondent committed such an offense. If this court were to allow the trial court to order such an evaluation without the benefit of evidence, one shudders to consider what other mischief could occur if uncharged, unsubstantiated, and unproved allegations are mistaken for evidence at either the adjudicatory or the dispositional stage of the proceedings, especially when the party condemned demands a hearing on the merits and is denied that opportunity. The dissent finds this \u201cdemeaning\u201d and sees the trial court\u2019s actions as nothing \u201cother than trying to reach the right result in this case.\u201d 343 Ill. App. 3d at 202. This opinion is not an ad hominem attack on the trial court; however, we do find both error and mischief in the violation of due process rights to confront witnesses and to require proof by at least a preponderance of the evidence, even when it is done to \u201cprotect children.\u201d If these rights can be sacrificed in such an instance, all other constitutional rights must also be vulnerable.\nThe dissent reveals the crux of the matter when it describes this case as \u201cgut wrenching\u201d because of the \u201cpossible sex abuse\u201d involved. See 343 Ill. App. 3d at 202. \u201cPossible\u201d sex abuse, though not alleged in the neglect petition; \u201cpossible\u201d sex abuse, though not proved, either through a criminal trial or an adjudicatory hearing; \u201cpossible\u201d sex abuse raised only through tertiary hearsay. \u201cPossible\u201d does not rise to the level of proof necessary to order a man to undergo an evaluation and possible counseling for sexual abuse. Such an order based on \u201cpossible\u201d acts is patent error. As this court noted in an appeal by one parent from an adjudication of neglect:\n\u201cWe are dealing here with the future and only possibilities and probabilities can be assessed. To expose respondent\u2019s children to a reasonable probability of abuse is something this court will not do. On the other hand, no child in any family is free from the possibility of future abuse and we cannot afford to sever the natural ties between parent and child and cause that loss to both of them on the mere possibility that the child may be abused.\u201d (Emphasis in original.) In re Baby Boy Butt, 76 Ill. App. 3d 587, 594 (1979).\nThe potential for further mischief can be found in the dissent\u2019s interpretation and application of section 2 \u2014 21(2) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2 \u2014 21(2) (West 2000)). The dissent argues that the \u201cbroad scope\u201d of section 2 \u2014 21(2) gave the trial court discretionary power to \u201corder an investigation into the alleged sex abuse.\u201d 343 Ill. App. 3d at 198. Apparently, the dissent sees no limit to the size of the net the trial court may cast to find information, as it would allow unreliable, tertiary hearsay to preclude respondent from determining the truth of the charges brought by a nonparty. The dissent finds this to be a \u201cmonumental overstatement,\u201d arguing that the use of hearsay evidence did not prevent respondent from \u201cattempting to discredit both accuser and accusation.\u201d 343 Ill. App. 3d at 201. How is respondent to \u201cdiscredit\u201d his accuser and the accusation when there never was a hearing at which respondent\u2019s accuser testified and was subject to cross-examination? Respondent\u2019s accuser never testified at his criminal trial because the charges were dropped. His accuser did not testify at the adjudicatory hearing, where no witnesses were called to testify, nor did she testify at the dispositional hearing. We are also stunned by the dissent\u2019s statement that respondent was not prevented \u201cfrom putting on a defense at the hearing.\u201d 343 Ill. App. 3d at 201. We first note that he was not charged with anything by the State at the time of the hearing; the court cannot make up charges as it goes along. Secondly, how was respondent to prove a negative, i.e., that no sexual abuse occurred, especially when his accuser never testified and was never present for cross-examination? The Star Chamber, inter alia, placed a premium on compelling subjects of investigation to admit guilt from their own lips. See People v. Baker, 123 Ill. 2d 233, 239 (1988). Unfortunately, that attribute is present in this case.\nThe State further argues that a trial court \u201cneed not wait until the child is victimized or emotionally damaged\u201d before removing a child from an injurious environment. While true, it does not mean that actions may be taken against a parent without giving him a hearing and an opportunity to respond to any allegations that would require rehabilitation for allegedly criminal behavior. A case should be decided on the facts in evidence. See In re T.W., 313 Ill. App. 3d 890, 892 (2000). Here, the \u201cfacts\u201d before the court were insufficient to warrant the order of a sexual offender evaluation. The State had the opportunity to prove these allegations of sexual molestation, either in a criminal trial, in an adjudicatory hearing, or at the dispositional hearing in question. It did none of these things. The court cannot presume these allegations to be proved without conducting a hearing, nor can it order respondent to prove that he is not a sexual offender, especially in light of the insubstantial \u201cevidence\u201d of a sexual offense that was presented to the court.\nRespondent next contends that the trial court erred when it adjudicated K.S. a neglected minor and did not place custody of her with him. We agree.\nThe State must prove allegations of neglect by a preponderance of the evidence. S.S., 313 Ill. App. 3d at 126. A preponderance of the evidence is an amount of evidence that leads a trier of fact to find that the fact at issue is more probable than not. S.S., 313 Ill. App. 3d at 126-27. A trial court\u2019s determination of neglect will not be reversed on appeal unless its findings of fact are against the manifest weight of the evidence; this is so because the trial court is in the better position to observe witnesses, assess credibility, and weigh evidence. S.S., 313 Ill. App. 3d at 127. As both parents must be adjudged unfit or unable to care for a child before placement with DCFS is authorized, the allegations of neglect must be determined as to both parents, especially where only one separated parent is alleged to have neglected the child. See S.S., 313 Ill. App. 3d at 127.\nHere, the only allegation of neglect that the State did not withdraw alleged that Valerie created an injurious environment for K.S. because she did not follow the DCFS safety plan. Valerie stipulated to a factual basis for neglect pursuant to this allegation. However, no allegations against respondent remained, and there was no proof, either through stipulation or introduction of evidence, that respondent had neglected K.S. All evidence related to Valerie, not respondent. For this reason, the trial court erred in finding that respondent neglected K.S.\nThe dissent argues that neglect is not specific to a parent and that the identity of the parent responsible for the neglect is irrelevant at the adjudicatory stage. However, this court has concluded in both S.S. and In re Arthur H., 338 Ill. App. 3d 1027 (2003), that neglect must be proved with respect to each parent. The dissent finds the rationale for these cases to be specious and based on an erroneous application of section 2 \u2014 21 of the Act (705 ILCS 405/2 \u2014 21 (West 2000)). However, this court has determined that the Act did not adequately address the situation, such as the one before us, where \u201conly one separated parent has abused or neglected the child.\u201d S.S., 313 Ill. App. 3d at 127. The actions in this case appear more serious because, in S.S., both parents were at least alleged to have abused and neglected the child. We also note that in In re C.N., 196 Ill. 2d 181 (2001), the minors involved were initially adjudicated neglected as to the mother only. See C.N., 196 Ill. 2d at 184, 218. Our supreme court duly noted this fact twice; it seems anomalous that the court would not comment on the apparent error of the procedure in that case if, as the dissent argues, neglect is not specific as to each parent. The analysis contained in S.S. and Arthur H. is not only valid law, it is applicable to the facts in this case.\nThe dissent\u2019s reliance on In re R.B., 336 Ill. App. 3d 606 (2003), is misplaced. In R.B., the State alleged that the minor was neglected because of an injurious environment, in that the child was exposed to the risk of domestic violence. The mother admitted to the allegation and stipulated to the police reports of an incident of domestic violence between the mother and the respondent, the child\u2019s father, when the minor was present. The respondent, whose first appearance in court was at the adjudicatory hearing, was given an opportunity to get an attorney and present any evidence at a future date. The respondent failed to present any evidence, and the trial court adjudicated the minor neglected. On appeal, the respondent argued that the evidence was insufficient to \u201c \u2018prove him guilty\u2019 \u201d of neglect. R.B., 336 Ill. App. 3d at 614.\nThe Appellate Court, Fourth District, held that the purpose of juvenile proceedings \u201cis to determine the status of the child on whose behalf the proceedings are brought, not to determine any particular person\u2019s criminal or civil liability.\u201d (Emphasis in original.) R.B., 336 Ill. App. 3d at 614. At an adjudicatory hearing, the court is to determine whether the minor has been neglected \u201cas alleged in the State\u2019s petition and as defined in section 2 \u2014 3 of the Act.\u201d R.B., 336 Ill. App. 3d at 614. The petition in R.B. alleged that the respondent was involved in the domestic violence that was the basis for the allegation.\nIn the case before us, K.S. was proved to be neglected \u201cas alleged in the State\u2019s petition.\u201d However, that petition alleged that K.S. was neglected because of the actions of her mother, not because of respondent\u2019s actions. This case does not involve the relative culpability of the parents, as was unsuccessfully argued by the respondent in R.B. It is easy to infer the joint responsibility of parents for neglect that occurs when both parents five with the child, or when the petition alleges that both parents contributed to the neglect, as was the case in R.B. See also Chyna B., 331 Ill. App. 3d at 596 (where the child fit the definition of a neglected minor whose environment was injurious \u201cby reason of respondent mother\u2019s actions and respondent father\u2019s inactions in failing to correct the conditions of which he was aware\u201d). However, the petition in this case was not directed against respondent, and the trial court\u2019s order does not specifically state that the allegations were directed only against the minor\u2019s mother.\nSuch a generalized adjudication is neither fair nor practical. An innocent parent should not be stigmatized by a finding of neglect that is not based on an allegation against him or her. The dissent argues that such parents are not stigmatized because they are \u201ctreated differently at the dispositional phase.\u201d 343 Ill. App. 3d at 194. Apparently, the dissent sees no stigma attaching to a parent being ordered to undergo an evaluation and potential counseling for a sexual offense that the parent denies occurred and the State declined to prosecute, let alone prove.\nFurthermore, the court is required to set forth findings in the adjudicatory order. Section 2 \u2014 21 provides that if the court finds that a minor is neglected, \u201cthe court shall then determine and put in writing the factual basis supporting that *** determination.\u201d 705 ILCS 405/2 \u2014 21(1) (West 2000). There is a definite purpose for the statutory requirement. The written order would set forth the grounds that would ultimately provide for a termination of parental rights if there were no reasonable efforts to correct the grounds that resulted in the original adjudication of the child. See 750 ILCS 50/1(D)(m) (West 1998). Placing an order of record that properly conforms to the allegations in the petition and the consequent findings constitutes the benchmark for rehabilitation and progress in each particular case. In re Z.Z., 312 Ill. App. 3d 800, 803 (2000). The contention of the dissent, that specific findings and adjudications as to the parents are unnecessary, undermines the statutory policy set forth above. How is a parent to achieve reasonable progress toward the return of the minor or reasonable efforts to correct the conditions that were the basis for the removal of the child if the basis for the removal was not of his doing and the pleadings fail to allege the nature and extent of the problems that are to be resolved?\nThe dissent posits that the \u201cadjudicatory phase is too early in the proceedings to make a final determination on the issue of who is responsible for the neglect because all of the relevant information is not yet available.\u201d 343 Ill. App. 3d at 194. We cannot fathom the thought process behind this statement. A neglect petition does not contain merely a blanket allegation that a child is neglected; it must also contain:\n\u201c[C]itations to the appropriate provisions of [the] Act, and set forth *** facts sufficient to bring the minor under Section 2 \u2014 3 or 2 \u2014 4 and to inform respondents of the cause of action, including, but not limited to, a plain and concise statement of the factual allegations that form the basis for the filing of the petition ***.\u201d 705 ILCS 405/2 \u2014 13(2) (West 2000).\nIt is at the adjudicatory hearing that \u201cthe relevant information\u201d regarding the factual allegations contained in the neglect petition is to be presented by the State in its effort to prove the petition. The petition is either proved or not proved at the adjudicatory hearing; that hearing is not some intermediate phase of the proceedings. Any other information is \u201crelevant\u201d only if the petition is proved and the case proceeds to disposition. Again, the dissent fails to address the fact that the only allegation of neglect that remained here involved the child\u2019s mother, Valerie. We are not informed by the dissent why the court would be unable to determine who is responsible for the neglect when only the actions of one parent form the basis of the neglect allegations.\nAt the time of the shelter care hearing, the court found probable cause to believe that K.S was neglected or abused because of the possible suffocation of her sibling at the hands of her mother and the \u201c[r]isk of harm\u201d due to respondent \u201cbeing indicated for risk of sexual abuse.\u201d The court found immediate and urgent necessity to remove K.S. from the home and place her in a shelter care facility because her mother was in jail and respondent had a \u201cprior indicated report of risk of sexual harm.\u201d Reasonable efforts to keep K.S. in the home could not be made because her mother was in jail and respondent \u201chas not availed himself to [sic] any sexual offender treatment and has [sic] prior indicated report.\u201d\nA fit parent has a superior right to custody of his child that can be superceded only by a showing of good cause to place custody of the child in a third party. S.S., 313 Ill. App. 3d at 132. The only allegations against respondent at the time of the shelter care hearing were the DCFS report and his failure to avail himself of sexual offender treatment arising out of an incident that he denied occurred and that the State declined to prosecute. The State had the opportunity to make a showing that placement with a third party was appropriate in this case, through prosecution of either the criminal charge or the abuse allegation. It did neither. The court found that respondent neglected K.S. in the absence of any allegation of neglect against respondent and in the absence of any evidence other than double or tertiary hearsay allegations. While the best interest of the child is the paramount consideration whenever a petition for adjudication of wardship is brought (see S.S., 313 Ill. App. 3d at 126), a trial court cannot disregard the evidence phase and proceed directly to the disposition. Therefore, the court\u2019s judgment of neglect as to respondent was against the manifest weight of the evidence and must be reversed.\nIn the absence of a judgment of neglect or any pending abuse or neglect petition against respondent, there is no good cause to overcome respondent\u2019s right to custody to his child and leave K.S. in shelter care. Therefore, the adjudication of wardship must be reversed, and guardianship and custody of K.S. must be placed with respondent. There being no judgment or pending cases against respondent, we find no basis for remanding the case, as is recommended by the dissent. The dissent correctly points out that respondent prayed that this court would reverse the trial court\u2019s judgment and remand for further proceedings. However, the dissent neglects to read, or fails to understand, the rest of respondent\u2019s argument, wherein respondent argues that \u201cthe trial court erred by *** failing to return K.S. to Respondent.\u201d We will take respondent at his (printed) word and conclude that respondent did, indeed, seek custody of his daughter.\nContrary to the dissent, the State had notice that respondent wanted K.S. placed with him, and it had the opportunity to address this issue on appeal. We find it ironic that the dissent is more concerned about the State\u2019s \u201copportunity to present an argument\u201d on this issue than it is about respondent\u2019s opportunity to respond to hearsay allegations of sexual abuse of a child.\nThe dissent cites to section 2 \u2014 10(2) of the Act, which prohibits the return of a minor in shelter care to a parent \u201cuntil the court finds that such placement is no longer necessary for the protection of the minor.\u201d 705 ILCS 405/2 \u2014 10(2) (West 2000). The dissent then argues that, since the trial court did not make such a finding, custody of K.S. should not be given to respondent. We must question how the trial court could ever make such a finding if the State never attempts to prove the hearsay allegations of sexual abuse, since it was those allegations that were the basis for finding that placement could not be made with respondent at the shelter care hearing. Again, the dissent would place the burden of proving that he was not a sex offender on respondent, apparently by undergoing a sex offender evaluation, instead of placing on the State the burden of proving, even by a preponderance of the evidence, that respondent posed a sexual threat. Mere hearsay allegations may have been sufficient for the court to find that placement with respondent was not appropriate at the time of the shelter care hearing. However, such flimsy, unproved allegations cannot indefinitely be used to separate respondent and his child. The State has an obligation to plead and prove these allegations if it wants to rely on them, and it has failed to do this.\nIf the State believes that K.S. is jeopardized by living with her father, it can file a new petition and seek shelter care again. However, we cannot allow custody of K.S. to be placed elsewhere if there is no case pending or no judgment of abuse or neglect. We also note that, should the State initiate further proceedings, the doctrines of res judicata, estoppel by judgment, and any other appropriate estoppel, as well as the law of the case, may apply to matters previously raised and decided or that could have been raised and decided in this case.\nFor these reasons, the judgment of the circuit court of Lake County is reversed.\nReversed.\nHUTCHINSON, EJ., concurs.", "type": "majority", "author": "JUSTICE McLAREN" }, { "text": "JUSTICE O\u2019MALLEY,\ndissenting:\nIn an enthusiastic misapplication of the best-interest-of-the-child standard, the majority leaps over the trial court and even beyond respondent\u2019s request and precipitously awards custody to respondent despite the fact that the majority acknowledges that there is credible evidence that respondent has engaged in sexual abuse of children. It then proceeds to leap beyond any and all issues in this appeal to warn the State, in a purely advisory way, that even if it thinks that this child \u201cis jeopardized by living with her father\u201d (343 Ill. App. 3d at 189), any further efforts to protect her may yield to \u201cres judicata, estoppel by judgment, and any other appropriate estoppel\u201d doctrines (343 Ill. App. 3d at 189). All of this in a case where the best interest of the child is supposed to be paramount.\nAdditionally, the majority incorrectly concludes that neglect is adjudicated separately with respect to each parent under the Juvenile Court Act (Act) when it holds that the trial court\u2019s finding of neglect was against the manifest weight of the evidence \u201cas to respondent.\u201d Because the finding of neglect was not improper, the trial court\u2019s order was within its authority to conduct an investigation under section 2 \u2014 21(2) (705 ILCS 405/2 \u2014 21(2) (West 2000)). The trial court, however, needed to make a finding at the dispositional phase on respondent\u2019s fitness before it placed K.S. in the guardianship of DCFS. I would remand to the trial court so that an investigation can be conducted pursuant to section 2 \u2014 21(2), as well as any other appropriate procedures available to aid the trial court at the dispositional hearing, so that the trial court can make a determination on respondent\u2019s fitness.\nOn the issue of whether neglect is adjudicated separately with respect to each parent, there is a split among our districts, and even among the justices of this district. Consequently, this point will require a rather detailed analysis of the language of the Act. I attempt such an analysis herein.\nIn my view, however, the most egregious error committed by the majority is that it precipitously awards KS.\u2019s custody to respondent while at the same time conceding that there is \u201ccredible evidence\u201d that he committed sex abuse (343 Ill. App. 3d at 181) and where in his prayer for relief respondent does not even ask for custody to be returned to him. The majority accuses me of not having read or understood the portion of the argument section of respondent\u2019s brief where he claims that the trial court erred by failing to award him custody of K.S. Obviously, I have read it, and I think that I understand it. In his prayer for relief respondent asks only that the trial court be reversed and the cause be remanded for further proceedings. What I see as significant is that, although respondent undoubtedly wanted custody, he never imagined that this court would actually give it to him. Even he realizes that our granting him custody at this point is grossly inappropriate.\nAwarding custody of K.S. to respondent at this point directly contradicts the express mandate of the Act. Section 2 \u2014 10(2) of the Act provides:\nThe trial court made a finding that an immediate and urgent necessity existed to remove K.S. from her home and place her in a shelter care facility. That finding was based in part on the risk that respondent would sexually harm K.S. The trial court has not made a finding that \u201cplacement is no longer necessary for the protection of the minor\u201d as section 2 \u2014 10(2) requires for custody to be returned to a parent. 705 ILCS 405/2 \u2014 10(2) (West 2000). What is more, the majority does not even make such a finding. Its basis for awarding custody of the minor to respondent is that there is \u201cno judgment or pending cases against respondent.\u201d 343 Ill. App. 3d at 188. By now granting custody of K.S. to respondent, the majority is doing what the legislature has expressly forbidden \u2014 awarding custody to a parent without first finding that shelter care placement is no longer necessary for the protection of the minor.\n\u201cOnce the court finds that it is a matter of immediate and urgent necessity for the protection of the minor that the minor be placed in a shelter care facility, the minor shall not be returned, to the parent, custodian or guardian until the court finds that such placement is no longer necessary for the protection of the minor.\u201d (Emphasis added.) 705 ILCS 405/2 \u2014 10(2) (West 2000).\nTo make matters worse, because respondent\u2019s prayer for relief does not ask us to grant him custody, the State has had no opportunity to present an argument that shelter care is still necessary for the protection of K.S. The State was not on notice that the issue was being decided in this appeal; as a result, we have not even heard what the State has to say on this issue.\nThe following chronology of events leading up to the award of custody of K.S. to respondent highlights the majority\u2019s error: DCFS becomes involved with K.S. because of respondent\u2019s alleged sexual abuse of both KS.\u2019s sibling and cousin. Pursuant to a DCFS safety plan, KS.\u2019s mother is ordered not to allow K.S. to have contact with respondent. KS.\u2019s mother allegedly savagely murders KS.\u2019s infant sibling. A petition for adjudication is brought regarding K.S. The trial court finds an immediate and urgent necessity to place K.S. in shelter care. An \u201cindicated\u201d DCFS report regarding respondent\u2019s alleged sex abuse is distributed to the parties. The abuse count alleging that respondent committed sex abuse as well as the counts relating to the murder are dropped when the mother stipulates to neglect based on her violation of the DCFS safety plan by allowing contact between K.S. and respondent. The court finds K.S. to be neglected and, among other things, orders respondent to complete a sex offender evaluation. Respondent fails to complete the evaluation. At the dispositional phase, the trial court again orders respondent to complete a sex offender evaluation. Respondent appeals. The majority orders custody given to respondent.\nIt seems apparent that, when the neglect petition was filed, respondent already did not have custody of K.S. because the mother\u2019s DCFS safety plan specifically provided that respondent was not to have contact with K.S. Further, neither the DCFS safety plan nor any of the records regarding KS.\u2019s involvement with DCFS prior to the filing of the neglect petition are part of the record in this appeal. We do not know what occurred in those proceedings, nor do we know the precise facts and circumstances surrounding the safety plan. It simply makes no sense for us to, in effect, overrule those proceedings when they are not before us. The trial court should craft the disposition in this case because it is better aware of the facts and in a superior position to fill in missing facts. In fact, the trial court is in a position to find out if the State intends to file a new petition \u201cas to\u201d respondent and, if it sees fit, can even order the State to file one (see In re D.S., 198 Ill. 2d 309, 332-33 (2002)). I believe that the majority has acted precipitously by granting relief neither requested by respondent nor available under the Act. Skipping the step of remanding the case to the trial court runs the risk of allowing harm to K.S. that could have been prevented. The majority makes a grave mistake by doing so.\nNext, the majority in a purely advisory opinion states that \u201cthe doctrines of res judicata, estoppel by judgment, and any other appropriate estoppel\u201d (hereinafter res judicata) may apply to a new petition brought by the State based on respondent\u2019s alleged sexual abuse. 343 Ill. App. 3d at 189. I do not see the point of advising the parties what may apply, especially where the majority\u2019s hypothesizing on res judicata directly contradicts its own notions about neglect being adjudicated separately with respect to each parent. According to the majority, \u201cthe only allegation of neglect that the State did not withdraw alleged that Valerie created an injurious environment for K.S. because she did not follow the DCFS safety plan\u201d and \u201cno allegations against respondent remained.\u201d 343 Ill. App. 3d at 185. If the majority really believes that neglect is separate with respect to each parent, then the issue of neglect \u201cas to\u201d respondent was not tried because the count regarding respondent\u2019s conduct was dropped. The majority\u2019s point is that the issue of neglect \u201cas to\u201d respondent was dropped and was never decided. Thus, under its theory, res judicata would not apply.\nMoreover, even if the issue of neglect \u201cas to\u201d respondent had been before the court, res judicata would not apply because the doctrines do not apply with full force to a child custody case. It has been held that \u201c[cjourts should be cautious in determining when to apply res judicata in child custody cases.\u201d In re Marriage of Weaver, 228 Ill. App. 3d 609, 616 (1992). Further, \u201c[res judicata] should not be strictly applied to bar evidence when the most important consideration is the welfare of the child.\u201d Weaver, 228 Ill. App. 3d at 616. Although the Weaver line of cases comes from divorce custody proceedings, its logic applies with equal force to juvenile court proceedings because the primary purpose of both is to protect the best interests of the child. If respondent confessed tomorrow that he had sexually abused the two minor children, the majority would nonetheless order K.S. to be placed in and to remain in the custody of respondent in deference to principles of res judicata. Such a rule clearly contravenes the Act\u2019s purpose of protecting the best interest of the child and is not the law. Moreover, the majority fails to explain why it chooses to interject (in a purely advisory way) this point at all.\nThe majority concludes that \u201cthe court\u2019s judgment of neglect as to respondent was against the manifest weight of the evidence.\u201d 343 Ill. App. 3d at 188. Neglect is not determined \u201cas to\u201d a particular parent; it refers only to the condition of the child. In re R.B., 336 Ill. App. 3d 606, 614-15 (2003). As one judge explained, \u201cparents are not adjudicated neglectful at the adjudicatory stage of the proceedings under the Act; rather, minors are adjudicated neglected.\u201d In re Arthur H., 338 Ill. App. 3d 1027, 1042 (2003) (Kapala, J., dissenting). In fact, nowhere does the Act mention neglect \u201cas to\u201d a particular parent. That an adjudication of neglect is not specific to a parent is clear from the plain language of the Act, which provides that, at the adjudicatory phase, \u201cthe court shall determine whether or not the minor is *** neglected.\u201d 705 ILCS 405/2 \u2014 21(1) (West 2000). Critically, section 2 \u2014 21(1) does not direct the court to determine whether the minor is neglected \u201cas to\u201d each parent. Rather, the sole question for the court to determine is whether the child is neglected as defined in the Act. Section 2 \u2014 3 (705 ILCS 405/2 \u2014 3 (West 2000)) defines neglect based solely on the condition of the child. For example, section 2 \u2014 3(l)(b) defines as neglected \u201cany minor under 18 years of age whose environment is injurious to his or her welfare.\u201d 705 ILCS 405/2 \u2014 3(l)(b) (West 2000). I fail to see how a child could meet this definition, but meet it only as to one parent. The definition focuses exclusively on the child and does not in any way reference the parents. Thus, the issue of which parent is responsible is irrelevant to an adjudication of neglect. Neglect \u201cdo[es] not address the question of who may be responsible for such adverse conditions because, in the first instance, that question does not matter.\u201d R.B., 336 Ill. App. 3d at 614. What matters in the first instance is solely whether or not the child\u2019s \u201cenvironment is injurious to his or her welfare.\u201d 705 ILCS 405/2 \u2014 3(l)(b) (West 2000).\nIn In re Chyna B., 331 Ill. App. 3d 591 (2002), the minor was found to be neglected because \u201crespondent mother had failed to correct the conditions that resulted in a prior adjudication of unfitness to exercise guardianship and/or custody of the minor\u2019s sibling.\u201d Chyna B., 331 Ill. App. 3d at 593. Although the allegation in the neglect petition concerned actions only of the mother, the Fourth District affirmed the trial court\u2019s decision that the neglect finding also applied to the father:\n\u201cIt was unnecessary for the trial court to find that Chyna B. was neglected on the basis of any action or inaction by respondent father. Chyna B. fit the definition of \u2018any minor under 18 years of age whose environment is injurious to his or her welfare\u2019 (705 ILCS 405/2 \u2014 3(l)(b) (West 2000)) by reason of respondent mother\u2019s actions and respondent father\u2019s inactions in failing to correct the conditions of which he was aware. A minor child may be found neglected even though the primary fault for creating the injurious environment rests with one parent.\u201d Chyna B., 331 Ill. App. 3d at 596.\nThere is good reason not to determine neglect separately \u201cas to\u201d each parent. The adjudicatory phase is too early in the proceedings to make a final determination on the issue of who is responsible for the neglect because all of the relevant information is not yet available. After a child is adjudicated neglected, section 2 \u2014 21(2) gives the trial court the power to order an investigation of, among other things, the child\u2019s family situation to assist it at the dispositional hearing. 705 ILCS 405/2 \u2014 21(2) (West 2000). As the supreme court has noted, \u201cother serious conditions, existing at the time the child is removed, may become known only after removal, following further investigation of the child, parent and family situation.\u201d In re C.N., 196 Ill. 2d 181, 214 (2001). It would make little sense to make a final determination on parental responsibility before the results of the investigation were available to the court. As the R.B. court explained, \u201c[i]f the State proves the neglect allegation, then causation \u2014 and remediation \u2014 can and should be addressed by the trial court at the dispositional hearing.\u201d R.B., 336 Ill. App. 3d at 615. Moreover, the trial court does make, \u201cto the extent possible,\u201d a preliminary finding on the issue of parental responsibility at the adjudicatory phase under section 2 \u2014 21(1). 705 ILCS 405/2 \u2014 21(1) (West 2000). Parents whose actions or omissions are not found under section 2 \u2014 21(1) to be the basis of the neglect finding are treated differently at the dispositional phase. See 705 ILCS 405/2 \u2014 23(a) (West 2000). For this reason, such parents are not \u201cstigmatized\u201d as the majority suggests. 343 Ill. App. 3d at 186.\nThe majority\u2019s misguided notion that a child is adjudicated neglected separately with respect to each parent can be traced to In re S.S., 313 Ill. App. 3d 121 (2000). That case concluded that it was \u201cnecessary to determine the neglect allegations as to both parents\u201d because of section 2 \u2014 27\u2019s (705 ILCS 405/2 \u2014 27 (West 2000)) provision that \u201cboth parents must be adjudged unfit or unable to care for the child before placement with DCFS is authorized.\u201d S.S., 313 Ill. App. 3d at 127. S.S. explicitly based its holding on section 2 \u2014 27. S.S., 313 Ill. App. 3d at 127. The problem is that S.S. applied section 2 \u2014 27 to the wrong stage of the proceedings. Section 2 \u2014 27 speaks only to the requirements for placing a child in the custody of DCFS at the dispositional stage. 705 ILCS 405/2 \u2014 27 (West 2000). This \u201cfitness\u201d finding has nothing whatsoever to do with adjudicating a child neglected, which neither places a child in the custody of DCFS nor is done at the dispositional stage. 705 ILCS 405/2 \u2014 21 (West 2000). Thus, section 2 \u2014 27 provides no support for the premise that children are adjudicated neglected separately with respect to each parent. The mistake is then repeated in Arthur H., which cites S.S., but not any provision of the statute, for the same rule. Arthur H., 338 Ill. App. 3d at 1034.\nThe majority apparently concedes that the reasoning behind S.S., and by extension Arthur H., was specious, as it attempts no defense of the section 2 \u2014 27 rationale behind those cases. The majority, however, has posited an alternative argument in favor of the same rule. According to the majority, the Adoption Act\u2019s provision that parental rights may be terminated for \u201c[flailure by a parent (i) to make reasonable efforts to correct the conditions that were the basis for the removal of the child from the parent, or (ii) to make reasonable progress toward the return of the child\u201d is inconsistent with a general adjudication of neglect. 750 ILCS 50/l(D)(m) (West 2000). Initially, I note the oddity that the majority looks to a provision of the Adoption Act to determine the meaning of the language of section 2 \u2014 3 of the Juvenile Court Act instead of looking at the language of section 2 \u2014 3 itself. Even ignoring this problem, I disagree with the majority\u2019s reasoning. Section l(D)(m) of the Adoption Act references a parent\u2019s failure to correct the condition that was the basis for removal of the child, not the basis for adjudication of neglect. Thus, I fail to see where section l(D)(m) has any bearing on an adjudication of neglect, let alone where it suggests that an adjudication of neglect is done separately \u201cas to\u201d each parent. Moreover, the unfitness finding necessary for removal, unlike an adjudication of neglect, actually is done separately with respect to each parent. 705 ILCS 405/2 \u2014 27 (West 2000); In re M.K., 271 Ill. App. 3d 820, 828 (1995).\nThe majority proceeds to make the unsupported claim that the \u201cdefinite purpose\u201d of section 2 \u2014 21(1) of the Act, which requires the trial court to \u201cspecify, to the extent possible, the acts or omissions or both of each parent *** that form the basis of the court\u2019s findings\u201d (705 ILCS 405/2 \u2014 21(1) (West 2000)), is to \u201cset forth the grounds that would ultimately provide for a termination of parental rights if there were no reasonable efforts to correct [them].\u201d 343 Ill. App. 3d at 186. Because section 1(D) (m) requires the parent to correct the condition that was the basis for removal, not to correct the condition that was the basis for the adjudication of neglect, it would seem more logical for the court at the termination hearing to look at the written factual basis for the finding of unfitness required by section 2 \u2014 27 that led directly to the removal. Additionally, the more explicit \u201cdefinite purpose\u201d of the trial court\u2019s findings made pursuant to section 2 \u2014 21(1) is to determine under what circumstances custody of a minor in shelter care may be restored to a parent at the dispositional phase:\n\u201c[I]n any case in which a minor is found by the court to be neglected or abused under Section 2 \u2014 3 of this Act, custody of the minor shall not be restored to any parent *** whose acts or omissions or both have been identified, pursuant to subsection (1) of Section 2 \u2014 21, as forming the basis for the court\u2019s finding of *** neglect, until such time as a hearing is held on the issue of the best interests of the minor and the fitness of such parent *** to care for the minor without endangering the minor\u2019s health or safety, and the court enters an order that such parent *** is fit to care for the minor.\u201d 705 ILCS 405/2 \u2014 23(a) (West 2000).\nSignificantly, the part of section 2 \u2014 23(a) that distinguishes parents found to be at fault under section 2 \u2014 21(1) is surplusage if an adjudication of neglect is separate \u201cas to\u201d each parent. Under the majority\u2019s rule, the child of a parent not responsible for \u201cforming the basis of the court\u2019s finding of *** neglect\u201d is not neglected \u201cas to\u201d that parent in the first place. If this rule were accurate, there would be no point to distinguishing parents who had been found to be responsible for the neglect under section 2 \u2014 21(1) because all parents whose child was neglected \u201cas to\u201d them would necessarily be responsible for the neglect. The use of the section 2 \u2014 21(1) finding to distinguish parents responsible for the neglect would be pointless and surplusage. I think that the Act is clear that an adjudication of neglect is not specific \u201cas to\u201d a parent.\nNext, the trial court\u2019s determination that K.S. was neglected was not against the manifest weight of the evidence. \u201cA minor child may be found neglected even though the primary fault for creating the injurious environment rests with one parent.\u201d Chyna B., 331 Ill. App. 3d at 596. K.S. lived with her mother. The mother is alleged to have murdered K.S.\u2019s infant sibling in a particularly horrific fashion. Possibly because she was charged with murder, the mother thought it prudent to stipulate to neglect based on facts unrelated to the death of K.S.\u2019s sibling. Given the fact that K.S. lived with her mother, who has stipulated to neglect, the trial court\u2019s finding that K.S. was neglected was not against the manifest weight of the evidence.\nThe majority apparently has some problem regarding stipulated testimony although it never explains what that problem is. The majority states that the \u201ccourt never heard any direct evidence\u201d (emphasis in original) (343 Ill. App. 3d at 181) regarding the sexual abuse, \u201conly a stipulation\u201d (emphasis added). 343 Ill. App. 3d at 181. The majority complains that the court heard only what \u201ccaseworker Martinez would testify to if she were called to testify.\u201d (Emphasis in original.) 343 Ill. App. 3d at 181. Stipulations are encouraged and commonplace. Underlining a description of them does not call into question their reliability. What is notably absent from the majority\u2019s lamentations regarding the stipulated testimony is any comment regarding an objection by respondent to allowing Martinez\u2019s testimony to come in only through stipulation.\nIncredibly, the majority repeatedly emphasizes that respondent was not part of the reason this child was found to be neglected. The majority notes that the only basis for the neglect finding was that Valerie did not follow the safety plan and then states that \u201call evidence related to Valerie, not respondent.\u201d (343 Ill. App. 3d at 185). I find this statement amazing and I cannot comprehend how the majority can suggest that respondent had nothing to do with the safety plan. The plan had only one purpose, to keep respondent away from the child. The violation was that he had contact with the child. Furthermore, even if respondent did not agree with the safety plan, he did not have the right to act in defiance of the trial court and violate it. In Chyna B., where the allegation in the neglect petition mentioned only the conduct of the mother, the court, nevertheless, held that the father failed to \u201ccorrect the conditions of which he was aware.\u201d Chyna B., 331 Ill. App. 3d at 596. Here, respondent was not just aware of the condition that was the basis of the neglect petition; he was the condition.\nOnce K.S. was adjudicated neglected, it was within the trial court\u2019s discretion to order a sex offender evaluation because there was evidence presented that respondent had committed a sex offense. The majority relies on its view that respondent\u2019s alleged commission of a sex offense was \u201cuncharged\u201d in the neglect petition. However, our supreme court has held that even if an issue is not alleged in the neglect petition, it can still be a basis for a service plan or dispositional order. C.N., 196 Ill. 2d at 214. The supreme court stated that \u201cthe relevant issues are not \u2018frozen\u2019 at the moment custody of the child is taken.\u201d C.N., 196 Ill. 2d at 213-14. Rather, the necessity of considering other conditions that later come to light is reflected in the \u201cbroad scope\u201d of the investigation that the trial court is authorized to order under section 2 \u2014 21(2) (705 ILCS 405/2 \u2014 21(2) (West 2000)), after an adjudication of neglect. C.N., 196 Ill. 2d at 214. Thus, \u201cit makes no sense to so narrowly limit what the trial court can order a respondent parent to do following an adjudication of neglect, abuse, or dependency.\u201d In re C.S., 294 Ill. App. 3d 780, 789 (1998); see also Chyna B., 331 Ill. App. 3d at 597-98 (\u201cthe conditions of a dispositional order need not relate solely to the grounds for adjudication of wardship\u201d).\nThe trial court had the discretionary power to order an investigation into the alleged sex abuse under the \u201cbroad scope\u201d (C.N., 196 Ill. 2d at 214) of section 2 \u2014 21(2) (705 ILCS 405/2 \u2014 21(2) (West 2000)). Section 2 \u2014 21(2) provides:\n\u201cTo assist the court in [deciding whether it is in the best interests of the minor to be made a ward of the court] and other determinations at the dispositional hearing, the court may order that an investigation be conducted and a dispositional report be prepared concerning the minor\u2019s physical and mental history and condition, family situation and background, economic status, education, occupation, history of delinquency or criminality, personal habits, and any other information that may be helpful to the court.\u201d (Emphasis added.) 705 ILCS 405/2 \u2014 21(2) (West 2000).\nGiven that there was evidence presented, hearsay or otherwise, that respondent committed a sex offense, it was not an abuse of discretion for the trial court to order further investigation before placing custody of K.S. with respondent. The majority misses the point when it states that \u201c \u2018possible\u2019 [sex abuse] does not rise to the level of proof necessary to order a man to undergo an evaluation and possible counseling for sexual abuse.\u201d 343 Ill. App. 3d at 183. It is paradoxical to require the trial court to have proof of sex abuse before it can order an investigation of sex abuse. Obviously, it makes no sense to make proof a prerequisite to ordering an investigation, the purpose of which is to determine whether there is proof. The majority cites In re Baby Boy Butt, 76 Ill. App. 3d 587 (1979), for the premise that an order based on possible sex abuse is \u201cpatent error.\u201d 343 Ill. App. 3d at 183. Butt, however, dealt with the proof necessary to place a child in the guardianship of DCFS, not the amount of evidence necessary to order an investigation under section 2 \u2014 21(2). In re Butt, 76 Ill. App. 3d at 594. There is a wide chasm between these two issues. Thus, Butt is inapplicable. The hearsay evidence that one of K.S.\u2019s siblings and K.S.\u2019s cousin accused respondent of sexually molesting them was enough to justify an investigation under section 2 \u2014 21(2).\nThe real question is whether the sex offender evaluation fits within the \u201cbroad scope\u201d (C.N., 196 Ill. 2d at 214) of the investigatory powers granted to the trial court under section 2 \u2014 21(2). The majority then states that \u201c[cjompletion of the evaluation would not establish whether respondent sexually molested T.V\u201d 343 Ill. App. 3d at 182. The majority then proceeds to \u201cshudder[ ] to consider what other mischief could occur if uncharged *** allegations are mistaken for evidence.\u201d 343 Ill. App. 3d at 182. I do not understand how the majority is so sure what the evaluation would or would not establish. The only thing we know about what the evaluation process would entail is what the trial court said about it. According to the trial court, the evaluators were to review the reports and the children\u2019s statements to see if there were credible recantations and to see \u201c \u2018whatever the situation is.\u2019 \u201d (Emphasis added.) 343 Ill. App. 3d at 180. The majority apparently has become hung up on the label, \u201cevaluation,\u201d and drawn some unstated and unjustified conclusions based on that word. In fact, as the trial court clearly indicated, it expected that the \u201cevaluation\u201d would be exactly the kind of investigation contemplated by section 2 \u2014 21(2). Such a process might very well establish whether there were credible recantations by the children or a confession by respondent or, of course, any of the unlimited possibilities between those two extremes.\nThe majority never states what the evaluation will entail, but I surmise that it concludes that the evaluation will be limited to some sort of psychological profile of respondent. Nothing in the record supports such an assumption, and the comments of the trial court that ordered it absolutely belie it. But even if the trial court had ordered only a psychological profile, I see the trial court\u2019s responsibility and discretion under section 2 \u2014 21(2) as broad enough to allow this. It is not unreasonable that respondent should be asked to participate in the investigation, given the unique nature of juvenile proceedings.\nEven if the majority believes that the sex offender evaluation is outside the scope of section 2 \u2014 21(2), it is still inappropriate to reverse the neglect finding, let alone place K.S. in respondent\u2019s custody. The majority would be better served to remand to the trial court, either so that it can clarify what it meant by a sex offender evaluation or so that it can order an investigation that conforms to whatever the majority believes the \u201cbroad\u201d scope of section 2 \u2014 21(2) to be.\nFocusing on what in fact the trial court contemplated in its order demonstrates the majority\u2019s error in accusing the trial court of abdicating its role as fact finder. The majority quotes the trial court\u2019s explanation, chiding it by italicizing for emphasis each of the trial court\u2019s acknowledgments of what it did not know. See 343 Ill. App. 3d at 182. These acknowledgments were hardly abdications; they were exactly the sorts of things the Act contemplates will be investigated pursuant to section 2 \u2014 21(2). The trial court never said that it intended to automatically adopt the report generated by the evaluation process or that respondent would be prohibited from challenging it at the dispositional hearing. Thus, the majority\u2019s charge that the trial court \u201crelied on the sexual offender evaluation to prove whether respondent was guilty of the claimed sexual offenses\u201d (343 Ill. App. 3d at 182) is unfounded. As section 2 \u2014 21(2) expressly states, the report is to assist the court at the dispositional hearing. It makes no sense to accuse the trial court of abdicating its role when it orders proceedings authorized by the Act to assist it.\nThe majority states: \u201c[W]e must point out the fallacy of the court\u2019s reasoning. We are unaware of any authority that has determined, pursuant to [Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),] that such an evaluation may be so utilized.\u201d 343 Ill. App. 3d at 182. The majority\u2019s sua sponte suggestion that a sex offender evaluation fails the Frye test is erroneous. In Frye, a federal appellate court affirmed a district court\u2019s determination that a lie detector test had not \u201cyet gained such standing and scientific recognition among physiological and psychological authorities\u201d as would justify the courts in admitting it. Frye, 293 F. at 1014. Here no party has raised Frye or adduced evidence about the scientific standing of a sex offender evaluation. Worse, we do not even know what is meant by the term \u201csex offender evaluation.\u201d Thus, there is no basis at this point for the majority to even offer a guess as to whether or not the evidence yet to be produced by the evaluation will be admissible under Frye.\nFinally, the majority states: \u201cApparently, the dissent sees no limit to the size of the net the trial court may cast to find information, as it would allow unreliable, tertiary hearsay to preclude respondent from determining the truth of the charges brought by a nonparty.\u201d 343 Ill. App. 3d at 183. This is a perplexing statement. Use of hearsay evidence is specifically authorized by the Act. 705 ILCS 405/2 \u2014 18(4)(c), 2 \u2014 22(1) (West 2000). Whether or not the hearsay evidence was \u201ctertiary\u201d misses the point. Respondent does not question that the two children accused him of sex abuse but, rather, maintains that the children lied. Thus, the factual content of the Catholic Charities report, i.e., whether or not the two children said that respondent sexually abused them, was never at issue. The record shows that the DCFS report, on which the Catholic Charities report was based, was distributed to the parties. It was not entered into evidence because there was no reason for it to be. In this case, there was no functional difference between \u201ctertiary\u201d evidence and simple hearsay, and the Act specifically authorizes consideration of hearsay without limitation on the basis of it being \u201ctertiary.\u201d 705 ILCS 405/2 \u2014 18(4)(c), 2 \u2014 22(1) (West 2000). The majority\u2019s assertion that the use of hearsay evidence precludes respondent from \u201cdetermining the truth of the charges brought by a nonparty\u201d (343 Ill. App. 3d at 183) is a monumental overstatement. It is true that use of hearsay evidence prevents respondent\u2019s cross-examination of the witness. However, this handicap is compensated for by the fact that the hearsay evidence is accorded lesser weight. 705 ILCS 405/2 \u2014 18(4)(c) (West 2000). Although respondent did not avail himself of this opportunity, the hearsay evidence did not prevent him from putting on a defense at the hearing and attempting to discredit both accuser and accusation. Importantly, the stipulated testimony and the hearsay evidence are not being used to force respondent to undergo sex offender treatment or, for that matter, as a basis for an unfitness finding under section 2 \u2014 27. They are being used as a basis to find more information pursuant to section 2 \u2014 21(2). In my view, this purpose is properly commensurate with the lower weight accorded to hearsay evidence.\nThe current procedural posture of this case presents a significant issue. The trial court entered a dispositional order that gave guardianship of K.S. to DCFS and placed her in the custody of her maternal grandmother. Section 2 \u2014 27, however, requires that before the trial court may take such action it must make a determination that \u201cthe parents, guardian, or legal custodian of [the] minor adjudged a ward of the court are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor or are unwilling to do so, and that the health, safety, and best interest of the minor will be jeopardized if the minor remains in the custody of his or her parents, guardian or custodian.\u201d 705 ILCS 2 \u2014 27(1) (West 2000). The trial court made no such finding.\nThe matter should be remanded (as respondent requests) so that the trial court can conduct a hearing to determine respondent\u2019s fitness and ability to care for K.S. The trial court should have available the reports generated as a result of any evaluations or investigations conducted pursuant to section 2 \u2014 21(2). Obviously respondent may participate in such a hearing. Consequently, the majority is wrong when it defends its position by complaining that, otherwise, actions will be taken against respondent without a hearing and the opportunity to respond to the allegations.\nI close by distancing myself from the demeaning tone that the majority has taken towards the trial court. For example, the majority states, \u201cone shudders to consider what other mischief could occur if uncharged, unsubstantiated, and unproved allegations are mistaken for evidence.\u201d 343 Ill. App. 3d at 182. The implication that the trial court was guilty of \u201cmischief\u2019 is uncalled for. Generally, these types of cases are emotionally difficult for everyone involved, including trial judges. This case is particularly gut wrenching given that it involves the gruesome murder of an infant and the possible sex abuse of other children. The trial court stated: \u201c[Tjhere is a founded report [regarding sex abuse]. There was a statement made by one of the girls. And that you are the father of a young girl, and that I have to make sure she is protected.\u201d The job of the trial courts in these cases is difficult enough. Even when they err, there is no need for us to insult them. Furthermore, it is not error, let alone mischief, to attempt to protect children from such an injurious environment. That the majority sees the evidence differently than the trial court does not mean that the trial court engaged in anything other than trying to reach the right result in this case.\nFor the reasons outlined above, I would remand for further proceedings consistent with my dissent.\nThe majority points out that C.N. makes reference to a trial court\u2019s finding of neglect as to the mother that occurred prior to a second adjudication of neglect that applied to both parents. C.N., 196 Ill. 2d at 184. However, C.N. merely described the trial court\u2019s actions and did not address the issue of whether neglect is determined separately \u201cas to\u201d each parent. C.N., 196 Ill. 2d at 184. Additionally, C.N. is factually distinct because, in that case, the father appears to have had no notice of the neglect proceeding that the majority points to. C.N., 196 Ill. 2d at 184.\nWhile these two determinations are in some respects similar, they are made at different stages of the proceedings and the factual basis of each, which may or may not consist of the same facts (see In re C.N., 196 Ill. 2d 181 (2000)), is recorded by the court in a separate written finding.\nAlthough the majority intermittently refers to sex abuse counseling in its opinion, the trial court at no time ordered sex abuse counseling.", "type": "dissent", "author": "JUSTICE O\u2019MALLEY," } ], "attorneys": [ "Elliot A. Pinsel, of Daniels, Long & Pinsel, of Waukegan, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (Martin E Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Martha M. Gillis, of Evanston, for the People." ], "corrections": "", "head_matter": "In re K.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Kevin S., Respondent-Appellant).\nSecond District\nNo. 2\u201402\u20140861\nOpinion filed August 27, 2003.\nElliot A. Pinsel, of Daniels, Long & Pinsel, of Waukegan, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (Martin E Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Martha M. Gillis, of Evanston, for the People." }, "file_name": "0177-01", "first_page_order": 195, "last_page_order": 220 }