Navigating the juvenile court evidentiary labryinth
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NAVIGATING THE JUVENILE COURT EVIDENTIARY LABRYINTH. LOUIS P. MILOT. 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. BASICS.

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NAVIGATING THE JUVENILE COURT EVIDENTIARY LABRYINTH

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Navigating the juvenile court evidentiary labryinth

NAVIGATING THE JUVENILE COURT EVIDENTIARY LABRYINTH

LOUIS P. MILOT


Rights of parties to juvenile proceeding

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


Basics

BASICS

  • MATERIAL

  • COMPETENT

  • RELEVANT


Shelter care temporary protective custody hearing rehearing

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)


  • Prima facie evidence per 2 18 2 a k

    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)


    Prima facie evidence

    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


    Adjudicatory hearing

    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)


    Adjudicatory hearing1

    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)


    Adjudicatory hearing2

    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. )


    Anticipatory neglect

    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)


    Directed findings

    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)


    Dispositional hearing

    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


    Dispositional hearing1

    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.)


    Permanency reviews

    PERMANENCY REVIEWS

    • BURDEN OF PROOF

      • REVIEW ONLY: NO BURDEN OF PROOF

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


    Permanency reviews1

    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


    Permanency reviews2

    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)


    Termination unfitness hearing

    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


    Best interest hearing

    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


    Special issues

    SPECIAL ISSUES

    • DISCUSSION


    The end

    THE END

    • THANK YOU!!!


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