In re G.V. , 2018 IL App (3d) 180272 ( 2019 )

Digitally signed by
Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2019.02.06
09:40:56 -06'00'
In re G.V., 2018 IL App (3d) 180272
Appellate Court In re G.V., a Minor (The People of the State of Illinois,
Caption Petitioner-Appellee, v. Sarah N. and Vincente V., Respondents-
Appellants).
District & No. Third District
Docket Nos. 3-18-0272, 3-18-0274 cons.
Filed October 5, 2018
Rehearing denied December 12, 2018
Decision Under Appeal from the Circuit Court of Will County, No. 15-JA-152; the
Review Hon. Paula Gomora, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Daniel J. Kallan, of Joliet, for appellant Sara N.
Appeal
Neil J. Adams, of Joliet, for appellant Vincente V.
James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, David
J. Robinson, and Thomas D. Arado, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Kristen Messamore, of Hammel Law Offices, P.C., of Joliet, for the
minor.
Panel JUSTICE O’BRIEN delivered the judgment of the court, with
opinion.
Presiding Justice Carter and Justice Lytton concurred in the judgment
and opinion.
OPINION
¶1 The trial court ordered G.V. a ward of the court and found respondents Sarah N. and
Vincente V. unfit and that it was in the best interest of their child, G.V., that their parental
rights be terminated. Both Sarah and Vincente appealed. We reverse and remand.
¶2 FACTS
¶3 The minor, G.V., was born on November 2, 2015, to respondent Sarah N. She named
respondent Vincente V. as the child’s father. Based on a hotline call, G.V. was taken
immediately into the custody of the Department of Children and Family Services (DCFS). The
call was made by a caseworker from a DCFS parallel agency in Connecticut, where Sarah had
previously lived. The information DCFS received was that Sarah’s two other children had been
removed from her care, her oldest child lived with the child’s father, and Sarah’s rights to the
other child were in the process of being terminated by the Connecticut court. The information
also included that Sarah’s father, with whom she was living in Illinois, had lost his parental
rights to her when she was a child due to physical and sexual abuse.
¶4 On November 9, 2015, the State filed a petition alleging that G.V. was neglected based on
an injurious environment. 705 ILCS 405/2-3(1)(b) (West 2016). A shelter care hearing took
place. Sarah appeared, but Vincente did not. The sole witness was Latanya Hoskins, a DCFS
investigator. She spoke with Sarah’s caseworker in Connecticut, who said that Sarah’s
children had been removed from her care and the State was proceeding with a termination case
for the second child and that the first child was living with her father. The trial court found
there was probable cause that G.V. was neglected based on an injurious environment. The trial
court appointed a court appointed special advocate (CASA) and guardian ad litem (GAL) to
represent G.V. Vincente appeared at a February 2016 hearing and stated that he filed a
voluntary acknowledgement of paternity.
¶5 An adjudicatory hearing took place on May 4, 2016. The court noted that there was still no
finding of paternity. Vincente stated his name was added to G.V.’s birth certificate but he left
the document back home in Connecticut. The trial court ordered a deoxyribonucleic acid
(DNA) test to determine G.V.’s paternity. The State presented Alexandra Bunker, the
placement supervisor for DCFS, as its witness and submitted People’s exhibit No. 1, which
was the DCFS investigatory report. Both Sarah and Vincente objected to admission of the
report on the basis of foundation, maintaining that, after the first three or four pages, the report
was inadmissible hearsay. Sarah also objected on the basis the report was not a business record
and could not be admitted under that hearsay exception. In response, the State characterized
the entire report as an indicated report and argued its admissibility.
¶6 The trial court sustained the objection as to business records but found that the report was
admissible as an indicated report. The trial court determined that the allegations of an injurious
-2-
environment were supported by the State’s exhibit and that G.V. was neglected. The court
found Sarah’s two other children were removed from her care in Connecticut and she did not
complete services there so that her children could be returned to her. The court also found that
Vincente had not established paternity. The court informed the parties that their compliance
with the service plan tasks was now mandatory and urged Vincente to do the integrated
assessment.
¶7 The court further instructed and admonished Sarah and Vincente as follows:
“This is the first part of the hearing. This Order right now that is going to be entered
is not appealable. It is not appealable until we do the second part which is the
dispositional part of the hearing or the dispositional hearing when it is decided whether
or not [G.V.] should be made a ward of the Court. Now, that means that it’s under my
supervision. You are under my supervision on whether or not you are performing the
services that are going to be put into the service plan.
At the point it’s decided, if I were to decide that [G.V.] should be made a ward of
the Court, at this point, the Order becomes appealable, and you can ask a higher Court
whether or not my determination is well founded. Okay?
So at this point, this is just one part of the hearing.
***
Do you understand what my admonishment is that you’re going to need to comply
with the terms of the service plan that D.C.F.S. is going to put in place; otherwise, you
risk termination of your parental rights?”
Both Sarah and Vincente acknowledged they understood the admonishment.
¶8 Sarah thereafter moved to reconsider the neglect finding, arguing the DCFS investigatory
report should not have been admitted in whole and the State did not meet its burden of
establishing neglect. Vincente did not join in her motion or file his own motion to reconsider.
A hearing took place. Sarah conceded that pages one through four of the report constituted an
indicated report but maintained the rest of the report was hearsay. The trial court considered
that there was enough information in the first four pages to support the neglect finding and that
no other contrary evidence was presented. The trial court denied the motion to reconsider.
¶9 A dispositional hearing took place on July 13, 2016. Vincente presented the amended birth
certificate naming him as G.V.’s father but had not yet participated in the integrated
assessment. Sarah had only contacted DCFS and participated in visitation. According to the
State, Sarah refused to sign consent forms so DCFS could investigate what services she
completed in Connecticut. The court noted that Sarah indicated she wanted to obtain the
information herself. The court determined that Sarah failed to comply with her service tasks
and that Vincente had failed to complete an integrated assessment or necessary consent forms
and had not filed a paternity action. The trial court reiterated its previous finding that G.V. was
neglected on the basis of an injurious environment and declared him a ward of the court.
¶ 10 The court admonished the parents as follows:
“But do you understand that you are going to need to comply with the service plan
with participating in an integrated assessment to be assessed for services, and that if
they require that you are going to need to do those, absent any appeals that you might
take administratively or judicially, whatever, otherwise your son is going to remain in
foster care until those services are well under way.
-3-
Otherwise, if you don’t do the services that are required of you, then you risk the
termination of your parental rights.
I am asking you if you understand that that is what you need to do?”
¶ 11 A November 2016 service plan indicated that Sarah had started some services but refused
others and that Vincente maintained contact with DCFS but had not participated in an
integrated assessment. Service plan reports dated March and May 2017 noted concerns about
Sarah’s mental health issues, cognitive limitations, and history of domestic violence and
expressed that she lacked the capacity to safely parent G.V. Vincente had participated in the
integrated assessment but provided only limited information. He refused to name his wife or
other children who lived with him. A May 2017 permanency review letter stated that Sarah has
a future risk of becoming a victim or perpetrator of domestic violence and her children were at
risk of exposure to domestic violence. The letter further stated that, even with services, Sarah
was not able to parent her children in Connecticut because of her mental health issues.
Vincente had not yet undergone DNA testing or participated in the integrated assessment in a
meaningful manner. Finally, the letter recommended the case proceed to legal screening.
¶ 12 At a June 1, 2017, hearing, the trial court vacated a parenting plan that had been entered by
another judge in response to a custody petition filed by Vincente on May 31, 2017. The
permanency review report indicated that the caseworker considered Sarah’s progress
unsatisfactory. CASA noted its concern regarding the case and its desire for the case to go to
legal screening. The caseworker stated that because Vincente had not completed the integrated
assessment, DCFS could not assess the viability of G.V. living with Vincente.
¶ 13 The State filed a motion to terminate Sarah’s and Vincente’s parental rights. The petition
alleged Sarah and Vincente failed to maintain a reasonable degree of interest, concern, or
responsibility for G.V., failed to make reasonable efforts to correct the conditions that were the
basis for G.V.’s removal, during the time period May 4, 2016, through February 28, 2017, and
failed to make reasonable progress toward G.V.’s return within nine months after the neglect
adjudication, such period being May 4, 2016, through February 28, 2017.
¶ 14 A trial took place on the petition in April 2018. The State presented Theresa Bruns, the
caseworker beginning in August 2016. She testified Vincente refused to answer a variety of
questions on the integrated assessment, maintaining that he had a constitutional right not to
answer the questions and that he was being profiled. She was on bereavement leave from
December 2016 to January 2017 and on medical leave from September 2017 to January 2018.
¶ 15 Following the State’s case, both Sarah and Vincente moved for directed verdicts on the
failure to maintain a reasonable degree of interest, concern, and responsibility as to G.V.’s
welfare allegation. Sarah also moved for a directed verdict on the failure to make reasonable
efforts allegation, and Vincente moved for a directed verdict on the failure to make reasonable
progress allegation. The court granted the motion as to Sarah’s and Vincente’s reasonable
interest allegations and denied it as to the other allegations. It never ruled on the lack of
reasonable concern allegation.
¶ 16 David Klemm, a psychologist with One Hope United who had treated Sarah from
December 2016 to April 2018, testified that she had made significant progress in counseling.
He explained that in all other instances where DCFS required a psychiatric assessment it would
ask him for a letter to the caseworker recommending the assessment. There was no request
regarding Sarah. Tyler Reynolds, an Easter Seals home visitor/parent educator testified that
-4-
Sarah had made significant improvement in her parenting skills but still had room for greater
improvement.
¶ 17 Sarah testified. She did not need domestic violence counseling, and she was unable to find
transportation to attend. She repeatedly asked her caseworkers for transportation assistance,
but they did not provide it. She would have attended if she had a ride. She did not have a
psychiatric assessment because she thought it was the same as the mental health assessment
she did have done. The first time she was aware they were different assessments was in
November 2017, but there was no further discussion about it.
¶ 18 Vincente testified. He lived in Connecticut, where he worked as a taxi driver. He had had
several video visitations with G.V. and four in-person visits. He filed a custody petition. After
the integrated assessment, he was not advised of any more services he needed to complete.
G.V. could have gone home with him, and he was ready to bring G.V. home. His family agreed
with his decision. Vincente’s exhibit No. 1, the voluntary acknowledgement of paternity, was
admitted into evidence.
¶ 19 The State called Bruns as a rebuttal witness, who testified that Sarah never indicated she
lacked transportation to domestic violence counseling and if she had asked, DCFS would have
provided it. At the close of evidence,Vincente renewed his motion for directed verdict, which
the trial court denied.
¶ 20 The court entered an order on May 2, 2018, finding both parents unfit. The court found
Sarah failed to maintain a reasonable degree of responsibility as to G.V.’s welfare, as indicated
by her refusal to participate in domestic violence counseling or have a psychiatric assessment.
She also failed to find a job, lived with her father whose parental rights had been terminated,
and relied on him for support. The court found Sarah failed to make reasonable efforts to
correct the conditions that resulted in G.V.’s removal, including refusing to participate in
domestic violence counseling despite her history of domestic violence or in the psychiatric
assessment despite her admitted diagnoses of multiple mental illnesses. Lastly, the court found
Sarah failed to make reasonable progress toward the return of G.V. to her care, pointing to
Sarah’s failure to complete her service tasks and her unsatisfactory progress toward G.V.’s
return. It pointed to her lack of stable, suitable housing and employment as well as the fact that
visitation continued to be supervised.
¶ 21 The trial court found Vincente unfit on the basis of his failure to maintain a reasonable
degree of responsibility for G.V. and to make reasonable progress to G.V.’s return home. The
court noted that, as for responsibility, Vincente did not attend the shelter care or reshelter care
hearings. He failed to complete the integrated assessment, and DCFS was unable to verify
whether Vincente’s home was suitable for G.V. As to reasonable progress, Vincente did not
execute a voluntary acknowledgement of paternity until March 31, 2016, and did not amend
the birth certificate until April 2016. He filed a custody petition in April 2017, which was
outside the period at issue. His visitation remained supervised throughout the pendency of the
proceedings.
¶ 22 A best interest hearing took place, and the trial court found that it was in G.V.’s best
interest to terminate Sarah’s and Vincente’s parental rights. The court entered an order
terminating Sarah’s and Vincente’s rights. Both Sarah and Vincente appealed.
-5-
¶ 23 ANALYSIS
¶ 24 There are several issues in this consolidated appeal. Both Sarah and Vincente argue the
trial court failed to admonish them of their appeal rights after it made G.V. a ward of the court.
Sarah argues that the court erred in terminating her parental rights and relied on improper
hearsay in reaching its conclusion. Vincente argues that the court erred in finding him
dispositionally unfit.
¶ 25 We begin with Sarah’s argument that the trial court relied on inadmissible hearsay in
ultimately terminating her parental rights. Although Vincente objected at the adjudicatory
hearing, he did not join Sarah in her motion to reconsider the trial court’s admission of the
investigatory report or raise the issue on appeal and has forfeited it. See In re S.H., 2014 IL
App (3d) 140500, ¶ 21 (issues not raised are forfeited). Nevertheless, because the trial court’s
findings affect Vincente’s fundamental right to parent, we will apply plain-error review and
consider this issue as to him as well as Sarah. See id. (termination of parental rights affects
fundamental liberty interest).
¶ 26 Sarah complains the court reached its conclusion by relying on impermissible hearsay
contained in the DCFS investigatory report, the exhibit used at the adjudicatory hearing on
May 4, 2016. The report stated that Sarah’s other children were removed from her care by the
State of Connecticut and that she failed to comply with services in Connecticut. The report
included the conclusion of the Connecticut agency, which determined that Sarah lacked
adequate parenting skills even with services. It also provided information on Sarah’s
circumstances, including that her father lost his parental rights to her when she was a toddler
due to physical and sexual abuse based on information from the Connecticut agency.
¶ 27 The trial court overruled Sarah’s and Vincente’s objections to the evidence, finding that it
was admissible as an indicated report. We disagree, consider it to be inadmissible hearsay, and
find the trial court erred in admitting it at the adjudicatory hearing.
¶ 28 Hearsay is “ ‘a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.’ ” In re Charles W.,
2014 IL App (1st) 131281, ¶ 35 (quoting Ill. R. Evid. 801(c) (eff. Jan. 1, 2011)). The rules of
evidence apply to adjudicatory hearings. 705 ILCS 405/2-18(1) (West 2016). Although
hearsay may be admitted at the dispositional hearing, it is inadmissible at the adjudicatory
hearing unless it falls under an exception under the Juvenile Court Act of 1987. In re Brooks,
63 Ill. App. 3d 328, 341 (1978). We review de novo whether something qualifies as hearsay
and whether a document is an indicated report. In re M.F., 304 Ill. App. 3d 236, 241 (1999);
In re J.C., 2012 IL App (4th) 110861, ¶ 19.
¶ 29 An indicated report filed pursuant to the Abused and Neglected Child Reporting Act (325
ILCS 5/1 et seq. (West 2016)) is admissible at an adjudicatory hearing. 705 ILCS
405/2-18(4)(b) (West 2016). An indicated report shall include “ ‘any other information that the
person filing the report believes might be helpful in establishing the cause of such abuse or
neglect and the identity of the person believed to have caused such abuse or neglect.’ ” In re
J.C., 2012 IL App (4th) 110861, ¶ 21 (quoting 325 ILCS 5/7 (West 2010)). A report should
include, as is possible, information regarding “ ‘any previous incidents of suspected child
abuse or neglect.’ ” Id. (quoting 89 Ill. Adm. Code 300.40(c) (2012)). Information received by
DCFS through a hotline call may be admitted to show why an investigation began, but it is not
sufficient to prove the truth of the allegations. In re Wheeler, 86 Ill. App. 3d 564, 569 (1980).
-6-
¶ 30 The investigatory report that was admitted as an indicated report under the statutory
hearsay exception contained substantial amounts of information that was unverified and lacked
any supporting documentation. Even the first several pages, which the court found were
sufficient in themselves to support the neglect finding, contained information based on
unsubstantiated hearsay. The narrative offered that Sarah was involved in an open case in
Connecticut, which had removed her two children from her care. A petition to terminate
parental rights was pending. Sarah fled to Illinois to avoid the removal of her third child, G.V.,
and resided with her father. The narrative further stated that, according to Sarah, her father’s
parental rights were terminated when she was a child based on physical and sexual abuse. The
Connecticut source did not know if he was indicated, convicted, or registered for sexual abuse
incidents. The narrative included concerns of the Connecticut agency that Sarah had severe
mental health issues, cognitive limitations, and a history of domestic violence and the agency’s
conclusion that Sarah lacked the capacity to safely parent a newborn.
¶ 31 The DCFS representative at the adjudicatory hearing testified that the exhibit was a true
and accurate copy of the investigative report and qualified as an indicated report. She provided
no other foundation or did not explain whether DCFS had received the files from the
Connecticut agency or was relying on the phone conversations between caseworkers. The
DCFS witness, Bunker, was a placement supervisor who was familiar with the case file but had
not participated in the investigation. The investigators did not testify. There was no detailed
explanation of the Connecticut findings or certified copy of them. There was no explanation of
the services with which Sarah was required to comply in Connecticut and her progress in the
service tasks. In essence, we have the placement supervisor testifying to information that the
investigators discovered while in phone conversations with an unnamed caseworker at an
unnamed agency in Connecticut. The record before us does not include, and we are unaware
whether the investigators had, any supporting records, such as the Connecticut agency file or
court documents.
¶ 32 We do not imply that the information DCFS provided at the adjudicatory hearing was
inaccurate or misleading. Our concern is that the information was provided and accepted
without any verified basis in the record. The witness’s characterization of the report as an
indicated report does not make it one. An indicated report is to include information helpful to
establish neglect and the person responsible for it and also include information regarding
previous incidents of abuse. We do not interpret the definition to allow hearsay and, in this
case, double and triple hearsay to be admitted solely on the basis that the information is part of
a report characterized as an indicated report by DCFS. See In re A.B., 308 Ill. App. 3d 227, 237
(1999) (finding service plans inadmissible where they were based on the witness’s
“secondhand knowledge, at best, of the events that lead to the conclusions contained in the
service plans”). Similarly, the DCFS report was not admissible under general statutory
exceptions concerning hearsay. See Ill. R. Evid. 803 (eff. April 26, 2012) (listing hearsay
exceptions); Ill. R. Evid. 902 (eff. Jan. 1, 2011) (allowing specified self-authenticating report
to be admitted although comprising hearsay).
¶ 33 In People v. Brady, 7 Ill. App. 3d 404, 407 (1972), the issue was whether DCFS
departmental reports were admissible at a joint adjudicatory and dispositional hearing. Like the
instant case, the court relied on agency reports prepared by a caseworker and a record of
agency contacts made with the family. Id. The court determined the reports were admissible
under the business records exception, although the reports included opinions that were not
-7-
factually based and were hearsay. Id. The reviewing court acknowledged that much of the
information was “gleaned from third party sources, [was] a distillation of the file, and [was], of
course, conclusory and rank hearsay.” Id. Noting the trial court was bound by the rules of
evidence in civil cases, the reviewing court found the reports inadmissible in the adjudicatory
hearing. Id.
¶ 34 In discussing the admissibility of the reports, the Brady court referenced the parents’ due
process rights to the care and custody of their children. Id. This concern guides us in reaching
our disposition here. A parent has a fundamental due process right to the care, custody, and
control of his or her children. In re Andrea F., 208 Ill. 2d 148, 165 (2003). In termination
proceedings, due process is “achieved by compliance with the provisions of the Juvenile Court
Act and fundamental fairness.” In re O.S., 364 Ill. App. 3d 628, 638 (2006). We find the
admission into evidence of the investigatory report as an indicated report did not comply with
the Juvenile Court Act and deprived Sarah and Vincente of due process. The proper remedy is
to vacate all orders entered on and after the May 4, 2016, adjudicatory hearing and begin anew
with the wardship proceedings.
¶ 35 The next issue for our consideration is whether the trial court erred in finding Vincente
dispositionally unfit. He maintains that the neglect finding was based on Sarah’s conduct
regarding her other children who were involved with the Connecticut courts and that the State
did not present any evidence that he would be unable to properly parent G.V. We lack
jurisdiction to consider this issue.
¶ 36 A party must appeal a final judgment within 30 days after entry of the final order from
which the appeal is taken, or, if a postjudgment motion is filed, within 30 days after the court
disposes of the final postjudgment motion. Ill. S. Ct. R. 303(a)(1) (eff. Jan. 1, 2015).
Dispositional orders in juvenile court proceedings are generally final and appealable. In re
Alexander R., 377 Ill. App. 3d 553, 555 (2007). A reviewing court lacks jurisdiction over an
untimely appeal. In re C.S., 294 Ill. App. 3d 780, 787 (1998).
¶ 37 The unfitness finding was entered at the adjudicatory hearing in July 2016. It was a final
and appealable order, which Vincente failed to timely appeal. We further find that, even if
Vincente had been properly admonished, an appeal would not have altered the finding.
Although there was no evidence he was responsible for the injurious environment
necessitating the neglect finding, the trial court had little information to indicate that Vincente
could properly care for G.V. He had not participated in an integrated assessment or filed for
custody and was an unfit parent in the eyes of the court.
¶ 38 Because of our disposition on these issues, we do not reach the other issues raised on
appeal. We note, however, that the trial court was required to admonish Sarah and Vincente at
the dispositional hearing of their right to appeal. The Juvenile Court Act requires that if a child
is found neglected and declared a ward of the court, the trial court must admonish the parents
they must cooperate with DCFS, comply with the service plans, and correct the conditions that
necessitated the child to be in the State’s care or risk the termination of their parental rights.
705 ILCS 405/1-5(3) (West 2016). The court must also inform the parties of their appeal rights
regarding the wardship order and any other final judgments. Id. On remand, proper
admonishments should be provided Sarah and Vincente at the dispositional and other hearings
as statutorily required.
-8-
¶ 39 CONCLUSION
¶ 40 For the foregoing reasons, the judgment of the circuit court of Will County is reversed and
the cause remanded for proceedings consistent with this opinion.
¶ 41 Reversed and remanded.
-9-