In re Emma L.

236 N.E.3d 1017

2023 IL App (5th) 230138

IN RE EMMA L., a Minor

(The People of the State of Illinois, Petitioner-Appellee,

v.Paul B., Respondent-Appellant).

No. 5-23-0138

Appellate Court of Illinois, Fifth District.

Rule 23 Order Filed July 12, 2023

Motion to Publish Allowed August 8, 2023

Opinion Filed August 8, 2023

Appeal from the Circuit Court of Jackson County. No. 22-JA-38, Honorable Christy W. Solverson, Judge, presiding.

Michael D. Burke, of Southern Illinois Law Center, LLC, of Carbondale, for appellant.

Joseph A. Cervantez, State’s Attorney, of Murphysboro, (Patrick Delfino, Patrick D. Daly, and Max C. Miller, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

OPINION

JUSTICE VAUGHAN delivered the judgment of the court, with opinion.

¶ 1 The respondent, Paul B., appeals the circuit court’s December 20, 2022, dispositional order finding him an abuser and unfit to care for his child along with the circuit court’s February 3, 2023, order denying his motion to vacate. On appeal, he argues that the court’s findings that he was an abuser and unfit to care for the child violated his due process rights. For the following reasons, we vacate both the circuit court’s adjudicatory and dispositional orders.

¶ 2 I. BACKGROUND

¶ 3 Paul is the biological father of Emma L., born November 22, 2017. He was adjudicated Emma’s father in proceedings filed in McHenry County, Illinois, at which time he was ordered to pay child support. Emma’s mother is Maria. Paul and Maria do not live together. Emma resides with Maria’s aunt, Tina.¹

¶ 4 On December 21, 2021, Paul filed a petition in Jackson County family court requesting the court establish custody and parental responsibilities. On December 30, 2021, a report was made to the Illinois Department of Children and Family Services (DCFS), alleging Emma was at a substantial risk of physical injury due to being in an environment injurious to her health and welfare while visiting with Paul. The agency ultimately classified the report as unfounded. On January 2, 2022, a second report regarding Emma was made against Paul that alleged sexual exploitation. That report was also classified as unfounded. On March 18, 2022, a third report was made to DCFS regarding cuts, bruises, welts, abrasions, and oral injuries. The agency also found that report was unfounded.

¶ 5 On April 11, 2022, a fourth report to DCFS claimed Paul was sexually inappropriate with Emma. An order of protection was issued for Emma in the family court proceedings. The report to DCFS alleged that Paul put lotion on Emma’s vagina following a bubble bath. Later reports revealed that, prior to the fourth report, Emma contracted a yeast infection and Tina instructed Paul not to give Emma bubble baths. On April 22, 2022, Paul’s home was raided by the FBI, at which time the agency took his computer and phone. On June 10, 2022, Paul’s employer received an anonymous phone call stating that Paul had abused a minor. Paul was subsequently suspended by his employer. Following a hearing in the family case on July 29, 2022, the order of protection was dismissed. The same day, DCFS took protective custody of Emma.

¶ 6 The State filed a juvenile petition on August 1, 2022. The petition listed two counts against Paul alleging that Emma was abused by Paul pursuant to section 2-3(2)(iii) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3(2)(iii) (West 2020)) and neglected pursuant to section 2-3(1)(b) of the Act (id. § 2-3(1)(b)) because Paul committed, or allowed to be committed, a sex offense against the minor child. A shelter care hearing was held on August 2, 2022. Although no transcript from the hearing is included in the record, the court’s docket entry indicated that a DCFS investigator testified, probable cause was found, and DCFS was appointed temporary guardian. The entry further noted that DCFS recently received three reports regarding the minor and a forensic interview was performed at DCFS’s request at Perry-Jackson Child Advocacy Center (CAC), during which time Emma disclosed multiple incidents of sexual abuse. A guardian ad litem (GAL) was appointed for Emma.

¶ 7 On September 14, 2022, the State filed a motion for in camera interview to obtain Emma’s testimony at the adjudicatory hearing. Two days later, the State filed a "joint motion to continue," stating issues had "arisen which will have great effect upon the posture and future proceedings in this pending case." The State further alleged, "In preparation for hearing, the People have been provided with information, previously unknown, which could substantially change the course of this matter, and require further inquiry and investigation." The motion stated that all the parties were made aware of the issues, joined in the motion to continue, and consented to a waiver of the statutory time limits regarding commencement of an adjudicatory hearing. The adjudicatory hearing was rescheduled for October 17, 2022.

¶ 8 On September 19, 2022, the State filed a supplemental juvenile petition that again alleged abuse and neglect. Paragraph four alleged that Emma was abused pursuant to section 2-3(2)(ii) of the Act (id. § 2-3(2)(ii)) in that a substantial risk of physical injury existed, other than by accidental means, because Emma’s mother, Maria, was "a habitual user of methamphetamine since the summer of 2020 which rendered her incapable of adequately parenting the minor child." The paragraph further alleged that Maria tested positive for methamphetamine on September 16, 2022. Paragraphs five and six continued to allege Paul committed, or allowed to be committed, sex offenses against Emma. Attached to the pleading was correspondence from a social worker stating "[b]ased on previous sessions and interactions with Emma there have been multiple allegations/reports of sexual and physical abuse by [Paul]." The correspondence continued, "During a therapy session on April 11th, 2022, Emma made comments alluding to sexual abuse, such as, ‘After daddy gave me a bath he took me to grammy’s room and put lotion up here’ while pointing at her vaginal area. Due to these statements, there are legitimate safety concerns in regard to unsupervised visitation."

¶ 9 On October 14, 2022, DCFS filed its assessment, which recommended the following services for Paul: (1) participate in a sex offender assessment and follow recommendations, (2) attend weekly mental health therapy, (3) receive a psychiatric evaluation, (4) participate in drug testing, and (5) participate in parenting education. The document further stated that the prognosis of Paul’s reunification with Emma was "poor," classifying his denial of the allegations as a "lack of responsibility" for his actions. The report also noted that Paul blamed Emma’s aunt (Tina) for DCFS’s involvement and believed the underlying cause was related to the custody dispute. The DCFS family service plan filed on October 14, 2022, contained the same recommendations. As to visitation, the plan stated, "Due to the nature of the allegations, visits between [Paul] and Emma have stopped." After noting that Paul had not seen Emma since April 20, 2022, the plan stated, "If visitation is resumed, it should be supervised closely and occur at the agency or a public setting."

¶ 10 The adjudicatory hearing was held on October 17, 2022. The circuit court read the new allegations in paragraph four to Maria as well as the allegations against Paul in paragraphs five and six. Maria’s counsel admitted the allegations in paragraph four. Paul’s counsel noted the State presented no evidence as to paragraphs five and six at the adjudicatory hearing and moved the court for dismissal of paragraphs five and six. In response, the State replied, "It’s a little unusual, your Honor, but in the grand scheme of things, what we’re here for is the best interest of Emma *** so if the Court wishes to do that, it’s okay, it really doesn’t change anything." There being no objection and the State not wishing to proceed with paragraphs five and six, the circuit court dismissed the counts. The circuit court admonished Paul that if the State wished to refile those allegations, it could.

¶ 11 Paul’s counsel then stated his client had not been given any parenting time and that DCFS was required to offer some type of parenting time. The court stated, "That is not correct," and admonished counsel that DCFS had discretion to grant parenting time, but the court would entertain a motion for parenting time. Counsel stated, "Okay," and the court continued, "And if you want to go down that road, then we can leave [Paul] in this case with the allegations and go from there." Counsel replied, "No, we’re good, your Honor." The court’s adjudicatory order was filed on October 26, 2022, and found Emma was abused based on the knowing and voluntary stipulation by Maria. The order left DCFS as the legal custodian and stated visitation was at the discretion of the social service provider. The order further stated, "Upon motion of the Respondent, *** [Paul] is dismissed as a respondent to this proceeding as there is no objection by the state, the guardian ad litem or the mother’s counsel."

¶ 12 Lutheran Social Services, who was contracted by DCFS to assist in this matter, filed its dispositional report on No- vember 3, 2022. The report indicated that Emma was currently visiting with her mother but not her father. Tina advised the agency that when Emma visited with Paul, Emma would often have behaviors² following the visits. Tina further reported to the agency that Emma expressed that she did not want to visit with her father and made comments such as "I never want to see him again" and "why is daddy so mean[?]" Tina also advised the agency that after visiting with her dad, Emma would often cry and clam up when asked how visits went. Based on the caregiver’s statement, and a therapist’s recommendation, the agency disallowed any further visitation with Paul. Paul was engaged in mental...