People v. Mario L. (In re J.L.)

53 N.E.3d 1097

403 Ill.Dec. 460

In re J.L., M.L., and A.L., Minors–Appellees (The People of the State of Illinois, Petitioner–Appellee, v. Mario L., Respondent–Appellant).

No. 1–15–2479.

Appellate Court of Illinois, First District, Fifth Division.

May 13, 2016.

Elizabeth Butler, Chicago, for appellant.

Robert F. Harris, Public Guardian, Chicago (Kass A. Plain and Christopher Williams, of counsel), guardian ad litem.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Nancy Kisicki, and Michele Lavin, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice REYES delivered the judgment of the court, with opinion.

¶ 1 Mario L. (Mario)¹ appeals from (a) adjudication orders entered by the circuit court of Cook County finding that he abused and neglected three of his minor children and (b) a disposition order finding him unfit and adjudging the children wards of the court. Mario contends that the trial court's finding that his younger daughter was sexually abused was against the manifest weight of the evidence “because it was based on inadmissible hearsay evidence regarding statements made by” his older daughter. He also argues that his due process rights were violated because “he was denied the right to defend himself against the allegations and subsequent findings of sexual abuse against” the older daughter (C.L.). The Office of the Cook County Public Guardian (the Public Guardian) and the State assert that the findings were supported by the manifest weight of the evidence and that Mario's due process rights were not violated.

¶ 2 For the reasons discussed below, we affirm the orders of the circuit court.

¶ 3 I. BACKGROUND

¶ 4 Araceli C. (Araceli) is the natural mother of: (a) M.O., a daughter (born in 1995); (b) Y.C., a daughter (born in 1998); (c) C.L., a daughter (born in 2000); (d) M.L., a son (born in 2004); (e) A.L., a daughter (born in 2006); and (f) J.L., a son (born in 2008). Mario is the natural father of C.L., M.L., A.L., and J.L.; he is not the father of M.O. or Y.C.

¶ 5 A. The Prior Proceedings

¶ 6 In July 2012, the Illinois Department of Children and Family Services (DCFS) was contacted regarding alleged sexual abuse of Y.C. by Araceli's live-in paramour. At the time, Mario lived in Mexico. Proceedings under the Juvenile Court Act of 1987(Act) (705 ILCS 405/1–1 et seq. (West 2012)) were initiated for each of Araceli's children referenced above.

¶ 7 In an adjudication order entered on February 27, 2013, in case number 12 JA 830, the court found, in part, that Y.C. “was sexually abused by mother's paramour.” In case number 12 JA 829, the court found that M.O. was abused and neglected, based on the sexual abuse of her sibling. M.O. and Y.C. were adjudged wards of the court in disposition orders entered on the same date.

¶ 8 In an adjudication order entered in case numbers 12 JA 831 through 12 JA 834 on February 27, 2013, Mario's four children—C.L., M.L., A.L., and J.L.—also were found to be abused and neglected based on the sexual abuse of their sibling (Y.C.). The order also stated, “Father was non-custodial at all times relevant.” Mario represents that he moved to Chicago after February 27, 2013. In a disposition order entered on March 29, 2013, Araceli was found to be unable to care for the children, and Mario was deemed fit and was awarded custody of his four children. According to the Public Guardian, the circuit court closed the cases of M.L., A.L., and J.L. in June 2013; C.L.'s case remained open. Mario had custody of all four children at that time.

¶ 9 B. The Commencement of the Current Cases

¶ 10 On August 28, 2013, the State filed three petitions for adjudication of wardship for J.L. (13 JA 816); M.L. (13 JA 817); and A.L. (13 JA 818). The adjudication and disposition orders entered in these three cases are the subject of the instant appeal.

¶ 11 The petition for A.L. alleged, in part:

“Minor disclosed to law enforcement and medical personnel that her father had touched her with his penis on her vagina and buttocks. Minor's sibling disclosed to medical personnel that her father touched her breasts and vagina on August 23, 2013. Minor's sibling stated that father was intoxicated at the time and that she has observed father drinking in the past. Minor and her sibling both stated that father hits their siblings and pulls their ears and hair.”

¶ 12 The petition alleged that A.L. was (a) neglected based on an injurious environment (705 ILCS 405/2–3(1)(b)² (West 2012)); (b) abused based on “a substantial risk of physical injury to such minor by other than accidental means” (705 ILCS 405/2–3(2)(ii) (West 2012)); and (c) sexually abused (705 ILCS 405/2–3(2)(iii) (West 2012)). In the petitions for adjudication of wardship filed for J.L. and M.L., the State alleged neglect-injurious environment and abuse-substantial risk based on the same allegations as set forth in A.L.'s petition.

¶ 13 On August 28, 2013, the court appointed separate attorneys for Araceli and Mario. The Public Guardian was appointed as the attorney and guardian ad litem for the children. The court awarded temporary custody of the children to the DCFS guardianship administrator. Araceli was granted supervised day visits; Mario was denied visits. Mario's sister, Abigail L., subsequently became the children's foster parent.

¶ 14 C. Notice to Compel Appearance of C.L. at Trial

¶ 15 On March 20, 2015, Mario filed a notice to compel the appearance of C.L. at the adjudication hearing scheduled to begin on April 15, 2015, pursuant to Illinois Supreme Court Rule 237(b). Ill. S.Ct. R. 237 (eff. July 1, 2005). The notice was filed in the cases of Mario's four children, including C.L.'s case (12 JA 831). C.L., through the Public Guardian, moved to quash the notice. The motion to quash provided, in part:

“8. [C.L.] has been through several foster homes and psychiatric hospitalizations. She has a history of mental health issues that include hallucinations. Her previous diagnoses include ADHD, Mood Disorder, Depression, and Sex abuse victim [sic ].

9. Upon information and belief, [Mario], through his attorney(s) intends to have [C.L.] testify to any knowledge of [A.L.'s] sexual abuse by him and/or her mother's paramours, and any other allegations in the petitions.

10. Given [C.L.]'s history of mental illness, efforts have been made to address the need, or lack thereof, for [C.L.'s] testimony. A proposed stipulation of [C.L.'s] possible testimony was requested. However, [Mario], through his attorney(s), has rejected those efforts.”

After discussing the court's “duty to act in the best interests of the minor and for the minor's own protection,” the Public Guardian asserted:

“It is not in the best interest of [C.L.] to be required to be present and testify at the adjudicatory hearing for her siblings. [Mario's] request does not indicate any compelling reason to demand [C.L.'s] presence or testimony in her siblings' case. At the present time, [C.L.] is doing well in school. She is mentally stable. She is stabilized to the point that her attending psychiatrist took her off all psychotropic medications. Any testimony, if at all relevant, is miniscule at best. There are alternatives to forcing [C.L.] to testify. The need for her testimony is outweighed by risk of her becoming destabilized.”

¶ 16 After hearing arguments, the trial judge concluded, “I don't think it's in the minor's best interest to have her come in here and testify at this point.” The court indicated its willingness to “revisit” the issue, noting that “[i]f it comes to that point, we can stop, we can pause, we can talk about it and decide how we proceed.” The court entered an order granting the Public Guardian's motion to quash “for good cause shown: best interest of the minor.”

¶ 17 D. The Adjudication Hearing and Key Evidence

¶ 18 At the commencement of the adjudication hearing, Mario's attorney moved “to exclude any evidence that the minor [C.L.] gave an interview to Chicago police detectives, or that those detectives memorialized that interview or documented it.” Counsel stated that “we've been told in the past there is no documented or recorded interview” by the “police or a victim sensitive interviewer of [C.L.].” The assistant State's Attorney (ASA) confirmed, “I don't have a victim sensitive interview recording” of C.L. She further responded that one of the witnesses, Lanese Kincaid–Turner (Kincaid–Turner), “will testify she wasn't allowed to take notes” during C.L.'s interview and thus her “testimony is going to be limited to what she can recollect and what's noted in her DCP ^{[3 ]} packet.” After some discussion, the court denied the motion in limine.

¶ 19 1. Testimony of Lanese Kincaid–Turner

¶ 20 Kincaid–Turner testified that she was a child protection specialist with DCFS who worked out of the Chicago Children's Advocacy Center (CCAC), addressing allegations of sexual abuse. According to Kincaid–Turner, the “report came in” in August 2013 with allegations of sexual molestation of C.L. and A.L. and “risk of harm” to M.L. and J.L. On August 26, 2013, C.L., M.L., A.L., and J.L. were evaluated at Stroger Hospital (Stroger). Based on “allegations of suicide,” C.L. was transported to St. Elizabeth Hospital (St. Elizabeth) for mental health services.

¶ 21 Also on August 26, 2013, Kincaid–Turner, Araceli and a family advocate spoke regarding the allegations. Kincaid–Turner testified:

“Mom talked about [C.L.] telling her that they did not go to therapy that Friday, I guess, and that the father had been out trying to find the boys bicycles, that he had been drinking that day, and that she slept in her father's bed with her siblings because she could not sleep in her bed. She talked about how the father came into the room and got into the bed with them, and that [C.L.] told her that the father touched her breasts and her private [sic ].”

According to Kincaid–Turner, Araceli “talked about not believing it” and “talked about how [C.L.] told her that when she said that about the...