NAVIGATING THE JUVENILE COURT EVIDENTIARY LABRYINTH

1. NAVIGATING THE JUVENILE COURT EVIDENTIARY LABRYINTH LOUIS P. MILOT

2. RIGHTS OF PARTIES TO JUVENILE PROCEEDING • RIGHT TO BE PRESENT • RIGHT TO BE HEARD • RIGHT TO PRESENT EVIDENCE • RIGHT TO CROSS-EXAMINE • RIGHT TO EXAMINE COURT FILE AND RECORDS • RIGHT TO BE REPRESENTED BY COUNSEL

3. BASICS • MATERIAL • COMPETENT • RELEVANT

4. SHELTER CARE/TEMPORARY PROTECTIVE CUSTODY HEARING/REHEARING • BURDEN OF PROOF: • PROBABLE CAUSE • RULES OF EVIDENCE: • 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 MODIFIED BY SOME PARTS OF §2-18 OF JCA • ADMISSIBLE EVIDENCE: • RELEVANT TO PROBABLE CAUSE THAT MINOR IS ABUSED, NEGLECTED OR DEPENDENT. 705 ILCS 405/2-10(1) • RELEVANT TO IMMEDIATE AND URGENT NECESSITY FOR SHELTER-CARE (See In re R.M., 288 Ill. App. 3d 811, 681 N.E.2d 652 (1st Dist. 1997)(Loss in weight of a few ounces ≠ immediate & urgent necessity)) • 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 HOME • PRIMA FACIE EVIDENCE PER §2-18(2)(a-k)

5. Medical Diagnosis – failure to thrive Medical Diagnosis – fetal alcohol syndrome Medical Diagnosis – narcotic/barbiturates withdrawal Medical Diagnosis – battered child syndrome Allowing/Encouraging Minor to Perform/Offer to Perform sex act Abnormal Injuries Consistent with Neglect/Abuse Repeated Use of Drugs by Parent/Guardian Impairing User Repeated use of Controlled Substance by Parent/Guardian Presence of Minor around Methamphetamine manufacture Forced labor/services of minor in violation criminal code PRIMA FACIE EVIDENCE PER §2-18(2)(a-k)

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

7. ADJUDICATORY HEARING • BURDEN OF PROOF: • PREPONDERANCE OF THE EVIDENCE • RULES OF EVIDENCE: • 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 AS MODIFIED BY RULES SET FORTH IN §2-18 OF JCA • Frye v U.S., 293 F. 1013 (DC Cir. 1923); Donaldson v. Cent. Ill. Public Serv. Co., 199 Ill. 2d 63, 77 (2002)(Sufficiently established to have gained general acceptance in field)

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

9. ADJUDICATORY HEARING • ADMISSIBLE EVIDENCE: • EVIDENCE RELEVANT TO ALLEGATIONS • STATUTORY ELEMENTS PER §2-3 OF JCA (e.g. factors to consider for inadequate supervision, etc.) • PRIMA FACIE EVIDENCE DESCRIBED UNDER §2-18(2)(a-k) JCA • EVIDENCE OF ANTICIPATORY NEGLECT PER §2-18(3) OF JCA • HOSPITAL & AGENCY BUSINESS RECORDS PER §2-18(4)(a) JCA; “Agency” §1-3(3) JCA • INDICATED REPORTS PER §2-18(4)(b) OF JCA • PREVIOUS 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 PER §2-18(4)(f) OF JCA • EVIDENCE THAT MINOR IS CHRONIC TRUANT PER 2-18(5) OF JCA • JUDICIAL NOTICE PRIOR SWORN TESTIMONY/EVIDENCE INVOLVING SAME PARTIES IF REPRESENTED PER §2-18(6) OF JCA • SOME POST-PETITION EVIDENCE (No bright-line rule/test = relevance; In re Kenneth D., 847 N.E.2d 544, et. al. )

10. ANTICIPATORY NEGLECT • Proof of neglect as to one minor is admissible on the issue of neglect of any other minor for whom the parent is responsible. §2-18(3) • The mere admissibility of evidence does not constitute conclusive proof of neglect of another minor. In re Arthur H., 212 Ill. 2d 441 (2004); No per se rule. In re J.C., 396 Ill. App. 3d 1050 (2009)

11. DIRECTED FINDINGS • Trial Court does not view the evidence most favorably to the Petitioner. • Trial court must weigh the evidence including evidence that favors the defendant/respondent. (Citation see materials)

12. DISPOSITIONAL HEARING • BURDEN OF PROOF: • PREPONDERANCE OF THE EVIDENCE • RULES OF EVIDENCE: • ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS MODIFIED BY §2-18 and §2-22 OF JCA • ALL EVIDENCE, INCLUDING ORAL AND WRITTEN REPORTS, HELPFUL TO DETERMINING THE FOLLOWING: • Whether 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 of the minor and public • The Permanency Goal • Nature of service plan for minor • Services delivered and to be delivered under the service plan. 705 ILCS 405/2-22 • A RECORD OF A PRIOR CONTINUANCE UNDER SUPERVISION §2-20

13. DISPOSITIONAL HEARING • ADMISSIBLE EVIDENCE: • DISPOSITIONAL REPORT* PERTINENT TO SUBJECT MATTER OF DISPOSITIONAL HEARING • SOCIAL HISTORY REPORT* PERTINENT TO SUBJECT MATTER OF DISPOSITIONAL HEARING • REPORTS* SPECIFICALLY ORDERED BY THE COURT • APART FROM FOREGOING REPORTS, OTHER HEARSAY EVIDENCE ALLOWED BY JCA AND EVIDENCE RELEVANT TO DETERMINATION OF BEST INTEREST OF MINOR * In re Marriage of Bates, 212 Ill. 2d 489 (2004)(Constitutional right in custody matter: Author of child representative report must be subject to cross-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 in Per. Rv.)

14. PERMANENCY REVIEWS • BURDEN OF PROOF • REVIEW ONLY: NO BURDEN OF PROOF • DISPOSITIONAL MATTER: PREPONDERANCE OF THE EVIDENCE (e.g. parental fitness; change guardian, etc.)

15. PERMANENCY REVIEWS • RULES OF EVIDENCE: • ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS MODIFIED BY RULES SET FORTH IN §2-18 OF JCA • ALL EVIDENCE, INCLUDING ORAL AND WRITTEN REPORTS, HELPFUL TO REVIEWING THE FOLLOWING: • Setting a permanency goal that is in the best interest of the child • The child’s placement status • Setting a placement goal for the child • The appropriateness of the services delivered and to be delivered under service plan to effectuate the permanency goal • Reasonable efforts of parents and agency. 705 ILCS 405/2-28

16. PERMANENCY REVIEWS • ADMISSIBLE EVIDENCE: • PERMANENCY REVIEW REPORT PERTINENT TO SUBJECT MATTER OF A PERMANENCY REVIEW • PARENTING ASSESSMENT REPORT PERTINENT TO SUBJECT MATTER OF PERMANENCY REVIEW HEARING • REPORTS SPECIFICALLY ORDERED BY THE COURT • OTHER HEARSAY EVIDENCE ALLOWED BY JCA AND EVIDENCE RELEVANT TO DETERMINATION OF BEST INTEREST OF THE MINOR • “All evidencerelevant to determining these questions, including oral and written reports, may be admitted and may be relied on to the extent of their probative value.” §2-28(2)

17. TERMINATION/UNFITNESS HEARING • BURDEN OF PROOF: • CLEAR AND CONVINCING EVIDENCE • RULES OF EVIDENCE: • ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS MODIFIED BY §2-18 OF JCA (In re Yasmine P., 328 Ill. App. 3d 1005 (2002) • CIVIL PRACTICE LAWS AND SUPREME COURT RULES PER §20 OF ADOPTION ACT. 750 ILCS 50/20 • ADMISSIBLE EVIDENCE: • EVIDENCE RELEVANT TO SPECIFIC ALLEGATIONS • EVIDENCE LIMITED BY SCOPE OF STATUTORILY PRESCRIBED TIME PERIODS (REASONABLE PROGRESS/EFFORTS 9 MONTH) • GUILTY PLEAS IF RELEVANT • NOT ENTIRE JUVENILE COURT FILE

18. BEST INTEREST HEARING • BURDEN OF PROOF: • PREPONDERANCE OF THE EVIDENCE • RULES OF EVIDENCE: • ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCDEURE AS MODIFIED BY §2-18 & 2-22 OF JCA §20 Adoption Act • ADMISSIBLE EVIDENCE: • SAME EVIDENCE AS ALLOWED AT DISPOSITIONAL HEARING • BEST INTEREST REPORT PERTINENT TO SUBJECT MATTER • EVIDENCE PERTAINING TO BEST INTEREST FACTORS PER §1-3 OF JCA AND §15.1 OF ADOPTION ACT • REPORTS SPECIFICALLY ORDERED BY COURT (e.g. bonding assessments, etc.) • OTHER EVIDENCE CONCERNING THE BEST INTEREST OF THE MINOR

19. SPECIAL ISSUES • DISCUSSION

20. THE END • THANK YOU!!!