NAVIGATING THE NAVIGATING THE JUVENILE COURT JUVENILE COURT

EVIDENTIARY EVIDENTIARY LABRYINTHLABRYINTH

LOUIS P. MILOTLOUIS P. MILOT

RIGHTS OF PARTIES TO JUVENILE RIGHTS OF PARTIES TO JUVENILE PROCEEDINGPROCEEDING

RIGHT TO BE PRESENTRIGHT TO BE PRESENT RIGHT TO BE HEARDRIGHT TO BE HEARD RIGHT TO PRESENT EVIDENCERIGHT TO PRESENT EVIDENCE RIGHT TO CROSS-EXAMINERIGHT TO CROSS-EXAMINE RIGHT TO EXAMINE COURT FILE AND RIGHT TO EXAMINE COURT FILE AND

RECORDSRECORDS RIGHT TO BE REPRESENTED BY RIGHT TO BE REPRESENTED BY

COUNSELCOUNSEL

BASICSBASICS

MATERIALMATERIAL COMPETENTCOMPETENT RELEVANTRELEVANT

SHELTER CARE/TEMPORARY PROTECTIVE CUSTODY SHELTER CARE/TEMPORARY PROTECTIVE CUSTODY HEARING/REHEARINGHEARING/REHEARING

BURDEN OF PROOFBURDEN OF PROOF::

• PROBABLE CAUSE PROBABLE CAUSE

RULES OF EVIDENCERULES OF EVIDENCE::

• ILLINOIS SUPREME COURT RULES (R 216; 236; 238)ILLINOIS SUPREME COURT RULES (R 216; 236; 238)

• ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE (Sup. Ct. R. Evid. 101-1102)ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE (Sup. Ct. R. Evid. 101-1102)

• ILLINOIS RULES OF EVIDENCE MODIFIED BY ILLINOIS RULES OF EVIDENCE MODIFIED BY SOMESOME PARTS OF PARTS OF §2-18 OF JCA§2-18 OF JCA

ADMISSIBLE EVIDENCEADMISSIBLE EVIDENCE::

• RELEVANT TO PROBABLE CAUSE THAT MINOR IS ABUSED, NEGLECTED OR DEPENDENT. 705 ILCS 405/2-RELEVANT TO PROBABLE CAUSE THAT MINOR IS ABUSED, NEGLECTED OR DEPENDENT. 705 ILCS 405/2-10(1)10(1)

• RELEVANT TO IMMEDIATE AND URGENT NECESSITY FOR SHELTER-CARE (See RELEVANT TO IMMEDIATE AND URGENT NECESSITY FOR SHELTER-CARE (See In re R.M.In re R.M., 288 Ill. App. 3d 811, , 288 Ill. App. 3d 811, 681 N.E.2d 652 (1681 N.E.2d 652 (1stst Dist. 1997)(Loss in weight of a few ounces Dist. 1997)(Loss in weight of a few ounces ≠ immediate & urgent necessity))≠ immediate & urgent necessity))

• RELEVANT TO SHOW THAT REASONABLE EFFORTS HAVE BEEN MADE TO PREVENT REMOVAL OR NO RELEVANT TO SHOW THAT REASONABLE EFFORTS HAVE BEEN MADE TO PREVENT REMOVAL OR NO REASONABLE EFFORTS COULD HAVE BEEN OR WERE MADE TO PREVENT REMOVAL OF MINOR FROM HOMEREASONABLE EFFORTS COULD HAVE BEEN OR WERE MADE TO PREVENT REMOVAL OF MINOR FROM HOME

• PRIMA FACIE EVIDENCE PER PRIMA FACIE EVIDENCE PER §2-18(2)(a-k)§2-18(2)(a-k)

PRIMA FACIE EVIDENCE PER PRIMA FACIE EVIDENCE PER §2-18(2)(a-k)§2-18(2)(a-k)

Medical Diagnosis – Medical Diagnosis – failure to thrivefailure to thrive

Medical Diagnosis – Medical Diagnosis – fetal alcohol syndromefetal alcohol syndrome

Medical Diagnosis – Medical Diagnosis – narcotic/barbiturates narcotic/barbiturates withdrawalwithdrawal

Medical Diagnosis – Medical Diagnosis – battered child battered child syndromesyndrome

Allowing/Encouraging Allowing/Encouraging Minor to Perform/Offer Minor to Perform/Offer to Perform sex actto Perform sex act

Abnormal Injuries Abnormal Injuries Consistent with Consistent with Neglect/AbuseNeglect/Abuse

Repeated Use of Drugs by Repeated Use of Drugs by Parent/Guardian Impairing Parent/Guardian Impairing UserUser

Repeated use of Repeated use of Controlled Substance by Controlled Substance by Parent/GuardianParent/Guardian

Presence of Minor around Presence of Minor around Methamphetamine Methamphetamine manufacturemanufacture

Forced labor/services of Forced labor/services of minor in violation criminal minor in violation criminal codecode

PRIMA FACIEPRIMA FACIE EVIDENCE EVIDENCE

Presumptions of neglect or abuse Presumptions of neglect or abuse created by prima facie evidence only created by prima facie evidence only creates a rebuttable presumption creates a rebuttable presumption that may be overcome by other that may be overcome by other evidence. evidence. In re K.G.In re K.G., 288 Ill. App. 3d , 288 Ill. App. 3d 728 (1997); 728 (1997); In re Edrika C.In re Edrika C., 276 Ill. , 276 Ill. App. 3d 18 (1995)App. 3d 18 (1995)

Contradictory evidence must be Contradictory evidence must be producedproduced

ADJUDICATORY HEARINGADJUDICATORY HEARING

BURDEN OF PROOFBURDEN OF PROOF::

• PREPONDERANCE OF THE EVIDENCEPREPONDERANCE OF THE EVIDENCE

RULES OF EVIDENCERULES OF EVIDENCE::

• ILLINOIS SUPREME COURT RULES (R 216; 236; 238 . . .)ILLINOIS SUPREME COURT RULES (R 216; 236; 238 . . .)

• ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE (Sup. Ct R. ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE (Sup. Ct R. Evid. 101-1102)Evid. 101-1102)

• ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS MODIFIED ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS MODIFIED BY RULES SET FORTH IN BY RULES SET FORTH IN §2-18 OF JCA§2-18 OF JCA

• Frye v U.S.Frye v U.S., 293 F. 1013 (DC Cir. 1923); , 293 F. 1013 (DC Cir. 1923); Donaldson v. Cent. Ill. Donaldson v. Cent. Ill. Public Serv. Co.Public Serv. Co., 199 Ill. 2d 63, 77 (2002)(Sufficiently established to , 199 Ill. 2d 63, 77 (2002)(Sufficiently established to have gained general acceptance in field)have gained general acceptance in field)

ADJUDICATORY HEARINGADJUDICATORY HEARING

WHERE A STATUTE CONFLICTS WITH A WHERE A STATUTE CONFLICTS WITH A SUPREME COURT RULE OF EVIDENCE OR SUPREME COURT RULE OF EVIDENCE OR DECISION ADOPTING A RULE OF DECISION ADOPTING A RULE OF EVIDENCE, COURTS ARE TO FOLLOW THE EVIDENCE, COURTS ARE TO FOLLOW THE SUPREME COURT RULE OR DECISION. SUPREME COURT RULE OR DECISION. PEOPLE v. PETERSONPEOPLE v. PETERSON, 2012 Ill. App. (3d) , 2012 Ill. App. (3d) 100514-B, 968 N.E.2d 204 (3d Dist. 2012); 100514-B, 968 N.E.2d 204 (3d Dist. 2012); STEIN v. KRISLOVSTEIN v. KRISLOV, 939 N.E.2d 518 (1, 939 N.E.2d 518 (1stst Dist. Dist. 2010) see also 2010) see also PEOPLE v. COXPEOPLE v. COX, 82 Ill. 2d , 82 Ill. 2d 268, 274, 412 N.E.2d 541 (1980)268, 274, 412 N.E.2d 541 (1980)

ADJUDICATORY HEARINGADJUDICATORY HEARING ADMISSIBLE EVIDENCEADMISSIBLE EVIDENCE::

• EVIDENCE RELEVANT TO ALLEGATIONSEVIDENCE RELEVANT TO ALLEGATIONS

• STATUTORY ELEMENTS PER STATUTORY ELEMENTS PER §2-3 OF JCA (e.g. factors to consider for inadequate supervision, §2-3 OF JCA (e.g. factors to consider for inadequate supervision, etc.)etc.)

• PRIMA FACIE EVIDENCE DESCRIBED UNDER §2-18(2)(a-k) JCAPRIMA FACIE EVIDENCE DESCRIBED UNDER §2-18(2)(a-k) JCA

• EVIDENCE OF ANTICIPATORY NEGLECT PER §2-18(3) OF JCAEVIDENCE OF ANTICIPATORY NEGLECT PER §2-18(3) OF JCA

• HOSPITAL & AGENCY BUSINESS RECORDS PER §2-18(4)(a) JCA; “Agency” §1-3(3) JCAHOSPITAL & AGENCY BUSINESS RECORDS PER §2-18(4)(a) JCA; “Agency” §1-3(3) JCA

• INDICATED REPORTS PER §2-18(4)(b) OF JCAINDICATED REPORTS PER §2-18(4)(b) OF JCA

• PREVIOUS OUT-OF-COURT STATEMENTS OF MINORS PER §2-18(4)(c) OF JCAPREVIOUS OUT-OF-COURT STATEMENTS OF MINORS PER §2-18(4)(c) OF JCA

• EVIDENCE OF MINOR’S IMPROVING CONDITION WHEN OUTSIDE CARE OF PARENT/GUARDIAN EVIDENCE OF MINOR’S IMPROVING CONDITION WHEN OUTSIDE CARE OF PARENT/GUARDIAN PER §2-18(4)(f) OF JCAPER §2-18(4)(f) OF JCA

• EVIDENCE THAT MINOR IS CHRONIC TRUANT PER 2-18(5) OF JCAEVIDENCE THAT MINOR IS CHRONIC TRUANT PER 2-18(5) OF JCA

• JUDICIAL NOTICE PRIOR SWORN TESTIMONY/EVIDENCE INVOLVING SAME PARTIES IF JUDICIAL NOTICE PRIOR SWORN TESTIMONY/EVIDENCE INVOLVING SAME PARTIES IF REPRESENTED PER §2-18(6) OF JCAREPRESENTED PER §2-18(6) OF JCA

• SOME POST-PETITION EVIDENCE (No bright-line rule/test = relevance; SOME POST-PETITION EVIDENCE (No bright-line rule/test = relevance; In re Kenneth D.In re Kenneth D., , 847 847

N.E.2d 544N.E.2d 544 , et. al. , et. al. ))

ANTICIPATORY NEGLECTANTICIPATORY NEGLECT

Proof of neglect as to one minor is Proof of neglect as to one minor is admissible on the issue of neglect of any admissible on the issue of neglect of any other minor for whom the parent is other minor for whom the parent is responsible. responsible. §2-18(3)§2-18(3)

The mere admissibility of evidence does The mere admissibility of evidence does not constitute conclusive proof of neglect not constitute conclusive proof of neglect of another minor. of another minor. In re Arthur H.In re Arthur H., 212 Ill. , 212 Ill. 2d 441 (2004); No per se rule. 2d 441 (2004); No per se rule. In re J.C.In re J.C., , 396 Ill. App. 3d 1050 (2009)396 Ill. App. 3d 1050 (2009)

DIRECTED FINDINGSDIRECTED FINDINGS

Trial Court does not view the Trial Court does not view the evidence most favorably to the evidence most favorably to the Petitioner.Petitioner.

Trial court must weigh the evidence Trial court must weigh the evidence including evidence that favors the including evidence that favors the defendant/respondent. (Citation see defendant/respondent. (Citation see materials)materials)

DISPOSITIONAL HEARINGDISPOSITIONAL HEARINGo BURDEN OF PROOFBURDEN OF PROOF::

PREPONDERANCE OF THE EVIDENCEPREPONDERANCE OF THE EVIDENCE

o RULES OF EVIDENCERULES OF EVIDENCE::

ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS MODIFIED BY ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS MODIFIED BY §2-18 and §2-22 OF JCA§2-18 and §2-22 OF JCA ALL EVIDENCE, INCLUDING ORAL AND WRITTEN REPORTS, HELPFUL TO DETERMINING THE ALL EVIDENCE, INCLUDING ORAL AND WRITTEN REPORTS, HELPFUL TO DETERMINING THE

FOLLOWING:FOLLOWING:

Whether it is in the best interest of minor to be made a wardWhether it is in the best interest of minor to be made a ward

If made a ward, the proper disposition best serving the health, safety and interest If made a ward, the proper disposition best serving the health, safety and interest of the minor and publicof the minor and public

The Permanency GoalThe Permanency Goal

Nature of service plan for minorNature of service plan for minor

Services delivered and to be delivered under the service plan. 705 ILCS 405/2-22Services delivered and to be delivered under the service plan. 705 ILCS 405/2-22

A RECORD OF A PRIOR CONTINUANCE UNDER SUPERVISION §2-20A RECORD OF A PRIOR CONTINUANCE UNDER SUPERVISION §2-20

DISPOSITIONAL HEARINGDISPOSITIONAL HEARING

o ADMISSIBLE EVIDENCEADMISSIBLE EVIDENCE::

DISPOSITIONAL REPORT* PERTINENT TO SUBJECT MATTER OF DISPOSITIONAL DISPOSITIONAL REPORT* PERTINENT TO SUBJECT MATTER OF DISPOSITIONAL HEARINGHEARING

SOCIAL HISTORY REPORT* PERTINENT TO SUBJECT MATTER OF DISPOSITIONAL SOCIAL HISTORY REPORT* PERTINENT TO SUBJECT MATTER OF DISPOSITIONAL HEARINGHEARING

REPORTS* SPECIFICALLY ORDERED BY THE COURTREPORTS* SPECIFICALLY ORDERED BY THE COURT

APART FROM FOREGOING REPORTS, OTHER HEARSAY EVIDENCE ALLOWED BY APART FROM FOREGOING REPORTS, OTHER HEARSAY EVIDENCE ALLOWED BY JCA AND EVIDENCE RELEVANT TO DETERMINATION OF BEST INTEREST OF MINORJCA AND EVIDENCE RELEVANT TO DETERMINATION OF BEST INTEREST OF MINOR

** In re Marriage of BatesIn re Marriage of Bates, 212 Ill. 2d 489 (2004)(Constitutional right in custody , 212 Ill. 2d 489 (2004)(Constitutional right in custody matter: Author of child representative report must be subject to cross-matter: Author of child representative report must be subject to cross-examination) see also 705 ILCS 405/2-22(c)(Fair opportunity to controvert examination) see also 705 ILCS 405/2-22(c)(Fair opportunity to controvert report); 705 ILCS 405/2-28(2)(Caseworker preparing report must appear in court report); 705 ILCS 405/2-28(2)(Caseworker preparing report must appear in court in Per. Rv.)in Per. Rv.)

PERMANENCY REVIEWSPERMANENCY REVIEWS

BURDEN OF PROOFBURDEN OF PROOF

REVIEW ONLY: NO BURDEN OF PROOFREVIEW ONLY: NO BURDEN OF PROOF

DISPOSITIONAL MATTER: DISPOSITIONAL MATTER: PREPONDERANCE OF THE EVIDENCE PREPONDERANCE OF THE EVIDENCE (e.g. parental fitness; change guardian, (e.g. parental fitness; change guardian, etc.)etc.)

PERMANENCY REVIEWSPERMANENCY REVIEWS RULES OF EVIDENCERULES OF EVIDENCE::

• ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS MODIFIED BY RULES SET FORTH IN MODIFIED BY RULES SET FORTH IN §2-18 OF JCA§2-18 OF JCA

• ALL EVIDENCE, INCLUDING ORAL AND WRITTEN REPORTS, ALL EVIDENCE, INCLUDING ORAL AND WRITTEN REPORTS, HELPFUL TO REVIEWING THE FOLLOWING:HELPFUL TO REVIEWING THE FOLLOWING:

Setting a permanency goal that is in the best interest Setting a permanency goal that is in the best interest of the childof the child

The child’s placement statusThe child’s placement status Setting a placement goal for the childSetting a placement goal for the child The appropriateness of the services delivered and to The appropriateness of the services delivered and to

be delivered under service plan to effectuate the be delivered under service plan to effectuate the permanency goalpermanency goal

Reasonable efforts of parents and agency. 705 ILCS Reasonable efforts of parents and agency. 705 ILCS 405/2-28405/2-28

PERMANENCY REVIEWSPERMANENCY REVIEWS ADMISSIBLE EVIDENCEADMISSIBLE EVIDENCE::

PERMANENCY REVIEW REPORT PERTINENT TO SUBJECT PERMANENCY REVIEW REPORT PERTINENT TO SUBJECT MATTER OF A PERMANENCY REVIEWMATTER OF A PERMANENCY REVIEW

PARENTING ASSESSMENT REPORT PERTINENT TO PARENTING ASSESSMENT REPORT PERTINENT TO SUBJECT MATTER OF PERMANENCY REVIEW HEARINGSUBJECT MATTER OF PERMANENCY REVIEW HEARING

REPORTS SPECIFICALLY ORDERED BY THE COURTREPORTS SPECIFICALLY ORDERED BY THE COURT OTHER HEARSAY EVIDENCE ALLOWED BY JCA AND OTHER HEARSAY EVIDENCE ALLOWED BY JCA AND

EVIDENCE RELEVANT TO DETERMINATION OF BEST EVIDENCE RELEVANT TO DETERMINATION OF BEST INTEREST OF THE MINORINTEREST OF THE MINOR

““All All evidenceevidence relevantrelevant to determining these questions, to determining these questions, including oral and written reports, including oral and written reports, maymay be admitted and be admitted and maymay be relied on to the extent of their be relied on to the extent of their probative valueprobative value.” .” §2-28(2)§2-28(2)

TERMINATION/UNFITNESS HEARINGTERMINATION/UNFITNESS HEARING

BURDEN OF PROOF:BURDEN OF PROOF: CLEAR AND CONVINCING EVIDENCECLEAR AND CONVINCING EVIDENCE

RULES OF EVIDENCE:RULES OF EVIDENCE: ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS

MODIFIED BY MODIFIED BY §2-18 OF JCA (§2-18 OF JCA (In re Yasmine PIn re Yasmine P., 328 Ill. ., 328 Ill. App. 3d 1005 (2002)App. 3d 1005 (2002)

CIVIL PRACTICE LAWS AND SUPREME COURT RULES PER CIVIL PRACTICE LAWS AND SUPREME COURT RULES PER §20 OF ADOPTION ACT. 750 ILCS 50/20§20 OF ADOPTION ACT. 750 ILCS 50/20

ADMISSIBLE EVIDENCE:ADMISSIBLE EVIDENCE: EVIDENCE RELEVANT TO SPECIFIC ALLEGATIONSEVIDENCE RELEVANT TO SPECIFIC ALLEGATIONS EVIDENCE LIMITED BY SCOPE OF STATUTORILY EVIDENCE LIMITED BY SCOPE OF STATUTORILY

PRESCRIBED TIME PERIODS (REASONABLE PRESCRIBED TIME PERIODS (REASONABLE PROGRESS/EFFORTS 9 MONTH)PROGRESS/EFFORTS 9 MONTH)

GUILTY PLEAS IF RELEVANTGUILTY PLEAS IF RELEVANT NOT ENTIRE JUVENILE COURT FILE NOT ENTIRE JUVENILE COURT FILE

BEST INTEREST HEARINGBEST INTEREST HEARING

BURDEN OF PROOFBURDEN OF PROOF::

PREPONDERANCE OF THE EVIDENCEPREPONDERANCE OF THE EVIDENCE

RULES OF EVIDENCERULES OF EVIDENCE::

ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCDEURE AS ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCDEURE AS MODIFIED BY MODIFIED BY §2-18 & 2-22 OF JCA §20 Adoption Act§2-18 & 2-22 OF JCA §20 Adoption Act

ADMISSIBLE EVIDENCEADMISSIBLE EVIDENCE::

SAME EVIDENCE AS ALLOWED AT DISPOSITIONAL HEARINGSAME EVIDENCE AS ALLOWED AT DISPOSITIONAL HEARING BEST INTEREST REPORT PERTINENT TO SUBJECT MATTERBEST INTEREST REPORT PERTINENT TO SUBJECT MATTER EVIDENCE PERTAINING TO BEST INTEREST FACTORS PER EVIDENCE PERTAINING TO BEST INTEREST FACTORS PER §1-3 OF JCA §1-3 OF JCA

AND §15.1 OF ADOPTION ACTAND §15.1 OF ADOPTION ACT REPORTS SPECIFICALLY ORDERED BY COURT (e.g. bonding REPORTS SPECIFICALLY ORDERED BY COURT (e.g. bonding

assessments, etc.)assessments, etc.) OTHER EVIDENCE CONCERNING THE BEST INTEREST OF THE MINOROTHER EVIDENCE CONCERNING THE BEST INTEREST OF THE MINOR

SPECIAL ISSUESSPECIAL ISSUES

DISCUSSIONDISCUSSION

THE ENDTHE END

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