In re D.M.

No. 3--08--0976
(Consolidated with Nos. 3--08--0977, 3--08--0979, and
3--08--0980)
_________________________________________________________________
Filed November 9, 2009
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2009
In re D.M. and R.O.M., ) Appeal from the Circuit Court
) of the 9th Judicial Circuit,
Minors ) McDonough County, Illinois,
)
(The People of the State of )
Illinois, )
)
Petitioner-Appellee, ) Nos. 08--JA--1 and
) 08--JA--2
v. )
)
Ronald M. and Dayna M., ) Honorable
) Patricia A. Walton,
Respondents-Appellants). ) Judge, Presiding.
_________________________________________________________________
JUSTICE SCHMIDT delivered the opinion of the court:
_________________________________________________________________
The State filed petitions alleging that the minors D.M. and
R.O.M., children of the respondents, Ronald M. and Dayna M., were
abused and neglected. Before ruling on the petitions, the court
issued orders that concerned: (1) tasks for the parents to
complete, including a sex offender assessment for Ronald; and (2)
the foster placement of the children. Also before the
adjudication, Ronald filed a motion for substitution of judge as
of right (735 ILCS 5/2--1001(a)(2) (West 2008)), which the court
denied. Later, the court adjudicated the minors to be abused and
neglected. In its dispositional ruling, among other things, the
court ordered: (1) Ronald to cooperate with any recommendations
made as a result of the sex offender assessment; and (2) the
respondents to apply for employment.
On appeal, the respondents argue that the court: (1) erred
by denying Ronald's motion for substitution of judge as of right;
(2) erred by ordering Ronald to cooperate with any recommend-
ations made as a result of the sex offender assessment; and (3)
violated their equal protection rights by ordering them to obtain
employment. We affirm.
I. BACKGROUND
D.M., a female, was born on January 20, 2003. R.O.M., a
male, was born on May 14, 2006. On January 18, 2008, the State
filed substantially similar juvenile petitions regarding D.M. and
R.O.M. In these petitions, the State alleged that the children
were both: (1) abused (705 ILCS 405/2--3(2) (West 2008)); and (2)
neglected because of an injurious environment (705 ILCS 405/2--
3(1)(b) (West 2008)).
On January 18, 2008, the court held an emergency shelter
care hearing. At this proceeding, the parties agreed to
temporary foster placement of the children with their paternal
grandmother, which the court then ordered.
On February 14, 2008, the respondents made their first
appearances in court with their separate court-appointed
attorneys. The parties presented the court with an agreement
concerning assessments that they wished to complete but that the
Department of Children and Family Services (DCFS) would not pay
for without a court order. Accordingly, on February 15, 2008,
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the court issued a written order, which required: (1) Dayna to
attend a parenting class and to submit to assessments both for
(a) anger management and (b) drug and alcohol abuse; and (2)
Ronald to successfully complete a parenting class and to submit
to assessments for both (a) the likelihood that he would commit a
sex offense and (b) drug and alcohol abuse. The February 15
order also: (1) stated that the respondents' visitation with the
children was to be at the discretion of DCFS, at a minimum of
once per week; and (2) set the hearing for the respondents to
either admit or deny the allegations of the petitions for
March 20, 2008.
On March 20, 2008, the parties asked the court to continue
the hearing to either admit or deny. Then, the parties presented
the court with another agreement, which the court issued in a
written order on March 27, 2008. This document stated that: (1)
the foster parent and Lutheran Social Services (LSS) had the
discretion to permit the respondents either to reside in the
foster home, to exclude the respondents from the foster home, or
to place the children elsewhere; (2) LSS was to schedule
psychological and substance abuse evaluations for the
respondents; (3) the respondents were to cooperate with the
service providers; and (4) a status hearing was set for May 15,
2008.
Thereafter, the hearing to either admit or deny was
continued several times. On August 21, 2008, the court issued
two virtually identical orders, regarding D.M. and R.O.M.,
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stating that "based upon the caseworkers [sic] knowledge of the
current placement, it is in the [children's] Best Interests that
DCFS or it's [sic] designee shall remove the minor [children]
from the home of [the paternal grandmother] instanter and place
[them] in a DCFS approved Foster Home."
On September 16, 2008, the State filed substantially similar
amended juvenile petitions alleging that D.M. and R.O.M. were
abused and neglected. In the amended petitions, in addition to
the neglect and abuse allegations in the original petitions, the
State submitted that the children were neglected because they
were not receiving the proper care necessary for their well-being
(705 ILCS 405/2--3(1)(a) (West 2008)).
On September 22, 2008, Ronald moved for substitution of
judge as of right, and submitted a second version of the motion,
to correct a typographical error, on September 25, 2008. The
hearing to either admit or deny had been continued to
September 25. At the beginning of this proceeding, the court
heard arguments on Ronald's motion, and denied it, ruling that:
(1) the motion was untimely because the case had been set for
adjudication; and (2) the court had made substantive rulings
concerning both: (a) evaluations for the respondents, and (b)
issues regarding placement of the minors. Next, both of the
respondents denied the allegations in the petitions.
The court held the adjudicatory hearing on October 9 and 23,
2008, in which it found the children to be abused and neglected.
The court issued its written adjudication on October 30, 2008.
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On November 20, 2008, the court held the dispositional
hearing. The court admitted both the dispositional hearing
report and the social history report prepared by LSS. The
dispositional report showed that neither of the respondents was
employed and both had incurred substantial credit card debts.
The report contained 31 enumerated recommendations, including
that: (1) Ronald cooperate with the recommendations made as a
result of the sex offender assessment; and (2) the respondents
locate and secure financial means by applying for employment. At
the hearing, Ronald objected to these and most of the other
recommendations in the report.
The record contains the sex offender assessment for Ronald,
which was prepared by LSS on May 23, 2008. The assessment showed
that Ronald was born on December 9, 1967. According to this
document, Ronald was indicated by DCFS in 1999 for sexually
molesting and sexually penetrating his stepsister. The
stepsister reported that he had fondled her breasts 10 to 20
times, beginning when she was six or seven years of age until he
moved to the state of Georgia with his brother. The record does
not indicate when the respondent moved to Georgia. The
stepsister was 17 years old when she reported Ronald's sexual
molestation to the police on February 10, 1999. On this date,
she also reported that Ronald had raped her when she was
approximately eight years old. The record does not indicate that
Ronald was convicted of a sex offense.
The assessment also noted that Ronald had stated that while
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he and his family lived in Georgia, his nine-year-old nephew
sexually molested D.M. when she was four years old. Ronald had
said that his mother-in-law "saw his nephew on top of [D.M.] with
his clothes off." The assessment said, "[Ronald] stated that a
child at age 4, referring to his daughter, 'does not know what is
going on anyways.' Regarding the alleged sexual abuse of his 4
year old daughter, [Ronald] stated 'I know it's serious, but it's
not that serious.'"
As part of the assessment, Ronald was given 15 self-
reporting questionnaires, one of which concerned alcoholism.
Based on Ronald's history, interviews with Ronald, and the
results of the questionnaires, the assessment concluded that he
was at a moderate risk to sexually offend. The assessment
especially noted Ronald's lack of concern regarding the
allegations that D.M. had been sexually molested by his nephew.
At the conclusion of the dispositional hearing, the court
made the children wards of the court and found the respondents to
be unfit. On December 4, 2008, the court issued its written
dispositional ruling, in which, among other things, it ordered:
(1) Ronald to cooperate with any recommendations made as a result
of the sex offender assessment; and (2) the respondents to locate
and to secure financial means by applying for employment. The
respondents appealed.
II. ANALYSIS
A. Motion for Substitution of Judge
The respondents contend that the trial court erred by
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denying Ronald's motion for substitution of judge as of right.
Specifically, the respondents submit that the rulings made by the
court before Ronald filed his motion were not substantial because
they were based on the agreements of the parties. We note that
cases concerning such a motion appear to use the terms
"substantive" and "substantial" interchangeably. See, e.g., Gay
v. Frey, 388 Ill. App. 3d 827, 905 N.E.2d 333 (2009); In re
Austin D., 358 Ill. App. 3d 277, 831 N.E.2d 1215 (2005).
By statute, a party is entitled to substitution of judge as
of right if, prior to the filing of the motion, the court has not
ruled on a substantial issue. 735 ILCS 5/2--1001(a)(2) (West
2008). Such a motion is untimely if it was filed after the judge
has ruled on a substantive issue in the case. Austin D., 358
Ill. App. 3d 277, 831 N.E.2d 1215. The reason for this policy is
to prevent a litigant from judge shopping after forming an
opinion that the judge may be unfavorably disposed toward his
case. Austin D., 358 Ill. App. 3d 277, 831 N.E.2d 1215. A
substantive ruling is one that directly relates to the merits of
the case. Austin D., 358 Ill. App. 3d 277, 831 N.E.2d 1215.
Such a motion also may be denied, in the absence of a substantive
ruling, if the movant had the opportunity to form an opinion as
to the judge's reaction to her claims. Austin D., 358 Ill. App.
3d 277, 831 N.E.2d 1215. Our review of a trial court's ruling on
a motion for substitution of judge as of right is de novo. In re
Marriage of Petersen, 319 Ill. App. 3d 325, 744 N.E.2d 877(2001).
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In the present case, before Ronald filed his motion, the
judge issued several rulings concerning: (1) tasks for the
parents to complete; and (2) the foster placement of the
children. Such rulings concerned matters that directly related
to the merits of the case. See Austin D., 358 Ill. App. 3d 277,
831 N.E.2d 1215. Furthermore, Ronald filed his motion long after
he had the opportunity to form an opinion concerning the judge's
reactions to his claims. See Austin D., 358 Ill. App. 3d 277,
831 N.E.2d 1215. For these reasons, Ronald's motion was not
timely filed. See Austin D., 358 Ill. App. 3d 277, 831 N.E.2d
1215.
The respondents argue that the judge's rulings were not
substantial because they were based on the agreements of the
parties. First, we note that the respondents have not cited any
authority for the proposition that a ruling based on the
agreement of the parties is not substantive. Moreover, we
observe that trial courts maintain discretion concerning whether
to issue an order based on an agreement by the parties. See,
e.g., In re Estate of Stepp, 271 Ill. App. 3d 817, 648 N.E.2d
1120 (1995). If a court issues such an order, it is the court,
and not the parties, that has so ruled. See Stepp, 271 Ill. App.
3d 817, 648 N.E.2d 1120. We find that a court order based on an
agreement by the parties may be, nonetheless, a substantive
ruling. Thus, we reject this aspect of the respondents'
argument. We hold, therefore, that the trial court did not err
by denying Ronald's motion for substitution of judge as of right.
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See Petersen, 319 Ill. App. 3d 325, 744 N.E.2d 877.
B. Dispositional Order
1. Recommendations Based on the Sex Offender Assessment
Ronald contends that the trial court erred in its
dispositional ruling by ordering him to follow any
recommendations made as a result of the sex offender assessment.
At the dispositional hearing, the trial court must consider
the best interest of the child. 705 ILCS 405/2--27(1) (West
2008); In re April C., 326 Ill. App. 3d 225, 760 N.E.2d 85(2001). We will reverse a trial court's dispositional
determination only if the findings of fact are against the
manifest weight of the evidence or if the trial court abused its
discretion by selecting an inappropriate dispositional order.
April C., 326 Ill. App. 3d 225, 760 N.E.2d 85.
In this case, the trial court ordered Ronald to submit to a
sex offender assessment, which was completed prior to the
dispositional hearing. Then, in its dispositional ruling, the
court ordered Ronald to follow any recommendations made as a
result of the assessment. We cannot say that such an order was
against the best interests of the children, given the questions
raised in the assessment concerning Ronald's past sexual conduct
and his risk to offend. See April C., 326 Ill. App. 3d 225, 760
N.E.2d 85. Therefore, we rule that the trial court's findings of
fact were not against the manifest weight of the evidence, and
the court did not abuse its discretion by ordering Ronald to
follow any recommendations made as a result of the sex offender
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assessment. See April C., 326 Ill. App. 3d 225, 760 N.E.2d 85.
Ronald cites In re J.H., 212 Ill. App. 3d 22, 570 N.E.2d 689(1991), for the proposition that the court abused its discretion.
In J.H., the appellate court held that the trial court had abused
its discretion in its dispositional ruling by ordering the
respondent to participate in sexual abuse counseling. In that
case, the minor children's mother had died, and they had lived
thereafter with the respondent father. The trial court's order
concerning sexual abuse counseling was based solely on a DCFS
report that the father had rubbed his minor daughter's genitals
several times and that he and the daughter had slept together in
the same bed. The J.H. court found that such evidence was
insufficient to require the respondent to participate in sexual
abuse counseling.
In the present case, unlike J.H., the evidence presented in
the sex offender assessment consisted of far more than the DCFS
indication of Ronald's sexual misconduct. The assessment, unlike
the evidence in J.H., also relied upon: (1) Ronald's lack of
concern regarding allegations that his nephew sexually molested
D.M.; (2) interviews with Ronald; and (3) the results of several
questionnaires. Moreover, the assessment concluded that, taking
several factors into account, Ronald was at a moderate risk to
offend. The court in J.H. relied upon no such thorough
assessment. Because J.H. is factually distinguishable, we find
its holding to be inapposite to the instant case.
2. Equal Protection
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The respondents argue that the court's dispositional ruling
violated their equal protection rights by ordering them to obtain
employment. Specifically, the respondents submit that the court
does not treat similarly situated respondents similarly by
requiring both employed and unemployed respondents to obtain
employment. The State notes that the court did not order the
respondents to obtain employment, but rather, only to apply for
employment.
As a preliminary matter, we observe that, in their brief,
the respondents contend that the court violated their equal
protection rights under the United States Constitution. However,
they have cited Jacobson v. Department of Public Aid, 171 Ill. 2d
314, 664 N.E.2d 1024 (1996), which discusses the equal protection
provisions of both the United States Constitution and the
Illinois Constitution. Therefore, we construe the respondents'
argument to concern both.
In Jacobson, 171 Ill. 2d 314, 664 N.E.2d 1024, the Illinois
Supreme Court stated that the analysis it applied in assessing
equal protection claims is the same under both the United States
and Illinois Constitutions. The constitutional right to equal
protection requires that the government treat similarly situated
individuals in a similar manner. Jacobson, 171 Ill. 2d 314, 664
N.E.2d 1024.
We find that although both employed and unemployed parents
may be respondents in juvenile proceedings, they obviously are
not similarly situated with regard to employment and their means
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of financial support for a family. Moreover, it would be absurd
for a court to order employed respondents to apply for
employment. Thus, the trial court in this case did not violate
the respondents' equal protection rights by ordering them to
apply for employment. We hold, therefore, that this aspect of
the dispositional order was neither against the manifest weight
of the evidence, nor an abuse of the court's discretion.
Dayna further contends that she may be unable to obtain
employment because she may be disabled. However, we note that
this issue is not ripe because there has not been a finding
either that Dayna is disabled or, if she is found disabled, that
her disability would prevent her from seeking employment.
III. CONCLUSION
For the foregoing reasons, we affirm the dispositional order
of the McDonough County circuit court.
Affirmed.
LYTTON and McDADE, JJ., concur.
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