No. 3--06--0370
Filed May 16, 2007.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
In re A.W., ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
a Minor ) Peoria County, Illinois,
)
(The People of the State of )
Illinois, )
)
Petitioner-Appellee, ) No. 05--JA--227
)
v. )
)
Eugene W., ) Honorable
) David J. Dubicki,
Respondent-Appellant). ) Judge, Presiding.
_________________________________________________________________
JUSTICE O’BRIEN delivered the opinion fo the court:
_________________________________________________________________
The circuit court of Peoria County adjudicated A.W. (minor)
neglected and made him a ward of the court. The respondent-
father, Eugene W., appeals, arguing that the trial court erred
by: (1) ruling that the doctrine of collateral estoppel barred
him from attacking prior indications of sexual abuse brought
against him by the Department of Children and Family Services
(DCFS); (2) finding that he remained unfit to care for the minor
because he was not allowed to complete the sex offender
counseling; and (3) finding that the minor was neglected. We
vacate the judgment and remand for further dispositional
proceedings.
FACTS
The record reflects that the minor was born on October 5,
2005. On October 11, 2005, the State filed a petition for
neglect with regard to the minor. In the petition, the State
alleged, inter alia, that the minor's environment was injurious
to his welfare because: (1) the respondent had been found unfit
by the trial court in a previous case in 2004, and there had been
no subsequent finding of fitness; and (2) DCFS had indicated the
respondent for sexual molestation in 1998 and 2002, and he had
not completed sex offender counseling.
On January 4, 2006, the court commenced a hearing on the
State's petition. The State submitted certified copies of a
prior adjudication of neglect with regard to the minor's older
sibling. These documents showed that the State had filed a
petition for neglect with regard to the older sibling in March
2004. The petition included the same allegations of sexual
molestation against the respondent as those made in the instant
petition. The documents further showed that on July 20, 2004,
the trial court entered its written order finding, inter alia,
that the State had proved the allegations of sexual molestation
by a preponderance of the evidence. Subsequently, the court in
the prior case had assigned to the respondent the following
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permanency goals: (1) perform random drug drops, and (2) attend
and complete domestic violence classes and sex offender
counseling.
The adjudicatory hearing continued on April 5, 2006. The
caseworker testified that the respondent had completed a drug and
alcohol assessment. No treatment was recommended. He had been
referred for counseling, but he did not attend regularly. He had
also completed a sex offender assessment in October 2005.
The respondent testified that he had successfully completed
a domestic violence class. He acknowledged that he had missed "a
couple" of counseling appointments. He had a small residence,
but he was waiting to receive a section 8 voucher so he could
move into a larger space. He stated that he was aware of the
indications of sexual molestation made against him by DCFS. He
had been referred to sex offender counseling. He further stated
that he had not been convicted of any sex crimes.
The State then objected to any further testimony with regard
to the DCFS indications, arguing that the issue had been
litigated in the prior adjudication. The court compared the
pleadings of the prior neglect proceeding with those in the
instant proceeding, and it found that the allegations were
identical. The court noted the prior court's finding that the
allegations had been proven by a preponderance of the evidence.
It further noted that this court had affirmed the court's
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findings on appeal. Thus, the trial court ruled that the
respondent was barred by collateral estoppel from litigating the
matter of the DCFS indications of sexual molestation.
The trial court found that the State proved by a
preponderance of the evidence that the minor was living in an
injurious environment. Specifically, the court found that the
respondent had not overcome the finding of unfitness in the prior
case because he had not completed sex offender counseling.
Accordingly, the court adjudicated the minor neglected.
At the dispositional hearing on April 26, 2006, the
respondent testified that he had been performing drug drops as
ordered in the previous case. All of the drops showed negative
for the presence of narcotics. He stated that he had attended
sex offender therapy, but that it had not been successful. The
therapist would not continue the program unless the respondent
admitted to having committed a sex offense. The respondent
refused to do so. He asked the therapist if there was another
way to continue the counseling without an admission. He sought
to discuss the strategies to avoid future offenses, but the
therapist told him that he had to first admit to being a sex
offender. When the respondent again refused to incriminate
himself, the therapist discharged him unsuccessfully from the
program.
With regard to this issue, a report prepared by the
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respondent's counselor after he had been discharged from sex
offender counseling stated the following:
"We discussed at great length that [his therapist] dismissed
him from treatment due to his refusal to work on issues. He
states that he never committed the offenses in the indicated
reports and is not an offender, and they will not treat him
unless he states he did. Encouraged [sic] him to return to
treatment to at least learn something from the sessions like
he did in the domestic violence classes, even though he
never admitted to being domestically violent."
The report further stated that the respondent had agreed to
return to sex offender therapy, "if [the therapist] will allow
it."
The respondent concluded his testimony by describing his
visits with the minor. He stated that he brought food, clothes
and toys for the minor, and the visits always went well. He
further stated that he would be able to provide housing for the
minor. The caseworker testified that the visits between the
respondent and the minor went very well. She had no suspicions
that the respondent was using illegal substances.
The trial court found the respondent unfit to care for the
minor based on the prior adjudication of the respondent as unfit
and the fact that no subsequent finding of fitness had been made.
It made the minor a ward of the court and awarded guardianship to
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DCFS. In explaining its decision, the court relied solely on the
respondent's unsuccessful discharge from sex offender counseling
as the basis for its finding of unfitness. It noted that the
respondent blamed the therapist, and that it did not have the
benefit of the therapist's testimony. However, the court
concluded that the respondent "has done a number of things, but
he is unfit because he still has not overcome *** a main hurdle
which led to these cases being in care."
The respondent appeals the trial court's order.
ANALYSIS
1. Collateral Estoppel
The respondent first asserts that the trial court erred in
barring him from introducing evidence to defend against the prior
allegations of sexual abuse brought by DCFS. Specifically, he
argues that the doctrine of collateral estoppel did not apply to
the instant case because the prior adjudication was made in a
proceeding involving different minors.
The well-established threshold requirements for the
application of collateral estoppel are: (1) the issue decided in
the prior adjudication is identical with the one presented in the
suit in question; (2) there was a final judgment on the merits in
the prior adjudication; and (3) the party against whom estoppel
is asserted was a party or in privity with a party to the prior
adjudication. Gumma v. White, 216 Ill. 2d 23, 833 N.E.2d 834
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(2005). For purposes of the application of collateral estoppel,
finality requires that the potential for appellate review must
have been exhausted. Ballweg v. City of Springfield, 114 Ill. 2d
107, 499 N.E.2d 1373 (1986).
In the instant case, the respondent had presented a defense
against the same allegations of sexual abuse in a prior juvenile
neglect proceeding. In the prior proceeding, the trial court
entered its judgment on the merits, finding that the State had
proved the allegations of sexual molestation by a preponderance
of the evidence. The respondent was a party to the prior
adjudication. Further, the respondent appealed the trial court's
order. Therefore the court properly ruled that the doctrine of
collateral estoppel barred the respondent from introducing
evidence to rebut the allegations.
II. Self-Incrimination
The respondent also contends that his constitutional right
against self-incrimination was violated when he was barred from
completing sex offender therapy because he would not admit to any
offenses.
The fifth amendment to the United States Constitution states
that "[n]o person *** shall be compelled in any criminal case to
be a witness against himself." U.S. Const., amend. V. A
communication must be testimonial, incriminating and compelled in
order to qualify for the fifth amendment protection. Hiibel v.
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Sixth Judicial District Court of Nevada, Humboldt County, 542
U.S. 177, 159 L. Ed. 2d 292, 124 S. Ct. 2451 (2004). "[T]he
Fifth Amendment privilege against compulsory self-incrimination
'protects against any disclosures that the witness reasonably
believes could be used in a criminal prosecution or could lead to
other evidence that might be so used.' " Hiibel, 542 U.S. at
190, 159 L. Ed. 2d at 305, 124 S. Ct. at 2460, quoting Kastigar
v. United States, 406 U.S. 441, 445, 32 L. Ed. 2d 212, 217, 92 S.
Ct. 1653, 1656 (1972).
In the instant case, we are guided by our prior decision in
In re L.F., 306 Ill. App. 3d 748, 714 N.E.2d 1077 (1999). In
that case, the trial court gave temporary custody of the
respondent's children to DCFS and subsequently changed the
permanency goal from "return home" to "substitute care pending
termination of parental rights" following the death of a
nonbiological child who was in the respondent's care. L.F., 306
Ill. App. 3d 748, 714 N.E.2d 1077. The respondent argued that
her fifth amendment right against self-incrimination was violated
when the trial court changed the permanency goal because she
would not comply with DCFS' requirement that she admit that she
was responsible for the child's death. L.F., 306 Ill. App. 3d
748, 714 N.E.2d 1077.
The court noted that this was a case of first impression in
Illinois. L.F., 306 Ill. App. 3d 748, 714 N.E.2d 1077. After
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looking to other states for guidance, the court recognized that
there was a very fine, but important, distinction between taking
steps to terminate parental rights based specifically on a
refusal to waive a right against self-incrimination and doing so
based upon a parent's failure to comply with an order for
meaningful therapy. L.F., 306 Ill. App. 3d 748, 714 N.E.2d 1077.
The other states' courts ruled that the fifth amendment bars a
state from ordering a parent to choose between losing his or her
parental rights or waiving his or her right to self-
incrimination. L.F., 306 Ill. App. 3d 748, 714 N.E.2d 1077,
citing In re Clifford M., 6 Neb. App. 754, 577 N.W.2d 547 (1998);
Mullin v. Phelps, 162 Vt. 250, 647 A.2d 714 (1994); In re Welfare
of J.G.W., 433 N.W.2d 885 (Minn. 1989); In re Welfare of J.W.,
415 N.W.2d 879 (Minn. 1987).
The L.F. court held that the trial court violated the
respondent's right against self-incrimination. L.F., 306 Ill.
App. 3d 748, 714 N.E.2d 1077. The court further noted that the
reasoning employed in the case applied to permanency review
hearings as well as termination of parental rights hearings.
L.F., 306 Ill. App. 3d 748, 714 N.E.2d 1077.
The matter in the instant case arises out of permanency
goals established by the court in a prior case with regard to the
instant minor's older sibling. We apply the same principle as
the court in L.F. because the trial court's findings of neglect
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and unfitness were based on its review of the respondent's
progress toward completing the permanency goals established in
the prior case. Thus, although the instant case arises from a
different procedural stage than L.F., the circumstances that form
the basis of the respondent's argument are the same.
In addition, we note that the manner in which the respondent
was compelled to waive his constitutional right against self-
incrimination is less overt than that in L.F., but the effect is
the same. Here, DCFS did not make it a goal for the respondent
to admit to an offense. Thus, he was not compelled to make an
admission in court. However, the therapist referred by DCFS made
the respondent's admission of guilt a complete hurdle to
completion of the court-ordered therapy. Therefore, the
respondent here was forced to make the same choice as the
respondent in L.F.: he had to admit to having committed a sex
offense in order to complete the last task or risk losing his
child.
We further find the case of In re Welfare of J.W.
instructive on this issue. J.W., 415 N.W.2d 879. In that case,
after removing the minors from their parents' care, the trial
court ordered a treatment plan where the respondents were
required to explain to a psychologist the death of their two-
year-old nephew who was in their care. J.W., 415 N.W.2d 879.
The order provided that the minors remain in foster care until
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the parents completed the treatment plan. J.W., 415 N.W.2d 879.
In holding that the order violated the parents' fifth amendment
rights, the court noted that a state cannot compel testimony by
threatening to impose potent sanctions, such as the loss of
parental rights, unless the respondent surrenders his or her
constitutional privilege. J.W., 415 N.W.2d 879.
The court in L.F. anticipated that the same issue may arise
upon its remand of the case for further proceedings. There the
court warned:
"[W]e note that the [trial] court may, upon remand,
order DCFS to structure a service plan that requires the
respondent to engage in effective therapy. While DCFS may
not compel therapy treatment that would require the
respondent to incriminate herself, it may require the
respondent to otherwise undergo treatment. Therapy,
however, which does not include incriminating disclosures
may be ineffective and ineffective therapy may hurt the
respondent's chances of regaining her children. As was
noted in In re J.W., 'these consequences lie outside the
protective ambit of the Fifth Amendment. '[Citation.]"
L.F., 306 Ill. App. 3d at 754.
The violation of the respondent's fifth amendment right in
the instant case occurred because he was not allowed to complete
the sex offender therapy without admitting to an offense.
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According to his counselor, he was able to successfully complete
the domestic violence course even though he refused to admit to
any violence. We also note that the respondent had cooperated
with DCFS in completing every other task assigned to him. In an
attempt to complete the therapy, the respondent inquired as to
whether his therapist could counsel him on strategies to avoid
offending in the future in spite of his refusal to admit to an
offense. We recognize that the treatment may not be effective in
the absence of an admission of misconduct. However, the
respondent was deprived of an opportunity to complete the sex
offender therapy.
In fashioning the appropriate remedy for this violation, we
also recognize that the loss of custody is "essentially 'the
stick' the court is holding over respondent's head to get
compliance with another of its orders: counseling." In re A.A.,
315 Ill. App. 3d 950, 953, 735 N.E.2d 179, 181 (2000). In A.A.,
the court further noted that the respondent's failure to complete
the ordered counseling while maintaining a close relationship
with his children gave his family a false hope of reunification.
A.A., 315 Ill. App. 3d 950, 735 N.E.2d 179. That false hope was
not in the best interest of the children. A.A., 315 Ill. App. 3d
950, 735 N.E.2d 179. In the instant case, there was no evidence
of what, if any, efforts the respondent made to complete the
ordered counseling once he was denied by the DCFS therapist. The
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respondent still had an obligation to complete the sex offender
counseling, but there is no evidence to show whether he had other
means of therapy than the DCFS therapist. While we uphold the
trial court's finding of unfitness, we vacate the court’s order
and remand the case to reopen the dispositional hearing for the
limited purpose of allowing the respondent to propose his own
service plan that would allow him to complete the sex offender
counseling without incriminating himself.
Based upon our ruling, we need not address the respondent's
next contention that the trial court's finding of neglect was
against the manifest weight of the evidence. The finding of
neglect was based, in part, on the respondent's unsuccessful
discharge from sex offender therapy. However, even if we removed
that basis, the remaining bases would have been sufficient to
support the court's finding of neglect. Thus, we allow the
neglect finding to stand, and we remand this case for further
dispositional proceedings with instructions.
CONCLUSION
For the reasons stated, the judgment of the circuit court of
Peoria County is vacated, and we remand the cause for further
dispositional proceedings with instructions to allow the
respondent to present his own service plan with regard to
completing the court-ordered counseling.
Vacated and remanded.
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CARTER, J., concurring.
JUSTICE SCHMIDT, dissenting:
I would affirm the trial court in its entirety. We are
sending this case back and, in essence, telling respondent to go
find some evidence that he did not offer before. Had he
suggested alternative counseling below and had the trial judge
refused to even consider it, that would be another matter. That
is not what happened here. I do not believe it is our function
to say to a party, "Here is what you should have done. Now go
back, get a new expert witness who will say you are fit, and try
it again." Even if respondent finds a counselor who says he can
treat him without an admission, DCFS will undoubtedly continue to
refute respondent's fitness and the trial judge will have to
decide which opinion on fitness is more credible. On what other
kind of case do we vacate judgments on the basis that one party
or the other ought to have a chance to produce an expert that the
party did not offer prior to the judgment? The trial court did
not err. Therefore, we should affirm.
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