People v. Ronald 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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