No. 3--08--0529
(Consolidated with Nos. 3--08--0534 and 3--08--0535)
_________________________________________________________________
Filed March 18, 2010
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
In re C.H., L.H., and W.H., ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
Minors ) Tazewell County, Illinois,
)
(The People of the State of )
Illinois, )
)
Petitioner-Appellee, ) Nos. 06--JA--76, 06--JA--77,
) and 06--JA--78
v. )
)
Leah H., ) Honorable
) Richard D. McCoy,
Respondent-Appellant). ) Judge, Presiding.
_________________________________________________________________
JUSTICE O’BRIEN delivered the opinion of the court:
_________________________________________________________________
Following a permanency review hearing, the court found the
respondent, Leah H., unfit to care for her children, C.H., L.H.,
and W.H. The respondent appeals, arguing, among other things,
that the court erred when it admitted recordings of her telephone
conversations. We reverse and remand.
FACTS
On August 29, 2006, the State filed separate but identical
petitions alleging W.H., a male born February 17, 1998; C.H., a
male born September 2, 2001; and L.H., a female born October 15,
2004, were neglected due to an injurious environment (705 ILCS
405/2--3(1)(b) (West 2006)). In the petitions, the State alleged
that the respondent and William H., the minors' father,: (1) had
a history of unresolved domestic violence issues; (2) had
previously been involved in a juvenile case; and (3) continued to
exhibit instability and domestic violence issues.
The respondent filed an answer stipulating to the
allegations in the neglect petition. Following an adjudicatory
hearing, the court found the minors were neglected based on the
respondent's stipulation.
The court held the initial dispositional hearing on
December 22, 2006. The court found that William was an unfit
parent and that the respondent was a fit parent, and it placed
custody and guardianship of the children with the respondent.
The court ordered the respondent to complete, inter alia, the
following tasks: (1) parenting classes; (2) domestic violence
classes; (3) counseling to address personal issues; (4) random
drug and alcohol tests; and (5) maintain stable housing and
income.
On May 10, 2007, the State filed a motion to award the
Department of Children and Family Services (DCFS) guardianship of
the children and to find the respondent unfit. The State
alleged, among other things, that the respondent generally failed
to complete her service plan tasks or show measurable progress.
2
The record shows that the court held permanency review
hearings in June and December of 2007. In preparation for these
hearings, DCFS caseworker Vicky Hoffman filed permanency review
reports that generally showed, among other things, that the
respondent had not made measurable progress on her service plan
tasks. Thus, at each of these hearings, the court determined
that the respondent's fitness was "reserved."
In preparation for the next permanency review hearing,
Hoffman filed a report on June 26, 2008. Hoffman indicated that
the respondent completed parenting and domestic violence classes
and was consistently participating in counseling. Further, from
January through May 2008, the respondent called on 102 of 104
possible testing days to see whether she needed to perform a
random drug test. Hoffman also disclosed that the respondent had
been charged with: (1) disorderly conduct; (2) harassment; and
(3) stalking, stemming from phone calls she made to Stephanie R.,
William's girlfriend.
Hoffman also filed an addendum to the permanency review
report. It showed that the respondent was "frustrated that
[William did] not give her money for the care of his children"
and was resentful that William's relationship with Stephanie was
"at the expense[] of her children." The respondent allowed
Hoffman "to listen to a recorded phone call with [William] in
which he was verbally abusive towards [the respondent] by means
3
of cursing, calling her derogatory and vulgar names, [and]
threatening her with losing her children and going to jail."
At the June 28, 2008, permanency review hearing, the State
and guardian ad litem recommended that the respondent be
adjudicated an unfit parent. Hoffman, however, felt that after
years of involvement, the respondent had not shown substantial
progress but had done just enough to maintain her fitness.
The State informed the court that the respondent had made
"lengthy, ranting, [and] derogatory" phone calls to Stephanie and
that Hoffman informed them that the children could be heard in
the background during "these rants." The court stated it was not
concerned about the telephone calls unless the children were
present when they were made, but that in "a couple of these cases
where [the court] had people who [were] so vulgar in front of
kids that [the court] just remove[d] the kids from them." The
court thus asked Hoffman whether she had information that the
respondent engaged in "these vulgar -- either conversations or
message[s] *** where the kids could hear her," and she answered
in the affirmative. The court recessed the hearing to obtain a
recording of these calls. Before it did, the respondent stated
that "[she] was in [her] room with the door shut when [she] was
talking to [William]."
The court allowed the respondent to leave the courtroom
while the tapes were played. Before she left, the respondent
4
reiterated that she was in her room with the door closed during
the conversations and that the children came into her room. The
court played the tapes, which consisted of 11 phone messages and
conversations of either only respondent speaking or the
respondent and Stephanie speaking. In general, the conversations
showed the respondent's frustration because Stephanie refused to
give the telephone to William so the respondent could speak to
him about their children. During the calls, the respondent was
upset and used offensive and, at times, vulgar and threatening
language. However, the calls also showed that William was not
paying the respondent child support and that she was experiencing
car trouble and needed assistance from him to be able to provide
the children with a safe and reliable means of transportation.
The tapes also showed that a series of calls occurred around 5
a.m. during which the respondent sounded intoxicated. Further,
in one call, a child could momentarily be heard in the
background. When the child walked in the room, the respondent
stopped speaking on the telephone and told the child to leave the
room.
After hearing the tapes, the court found that the respondent
was an unfit parent. The court found that during some
conversations, the respondent was "drunk, high or psychotic" and
that "in at least three of these conversations, [the respondent
was] out of control exhibiting instability." The court explained
5
that it based the unfitness finding on the respondent's conduct
toward the father and Stephanie and because during at least one
conversation the children were present. The court also restored
William's fitness and gave him custody of the minors. The
respondent appealed.
ANALYSIS
The respondent contends that the court erred when it
admitted recordings of the telephone conversations and messages
into evidence at the June 28, 2008, permanency review hearing.
Section 2--28 of the Juvenile Court Act of 1987 (Act)
governs court proceedings that review the original dispositional
order, also known as permanency review hearings. 705 ILCS 405/2-
-28 (West 2006). Hearings pursuant to section 2--28 "are simply
further dispositional hearings, conducted in accordance with
section 2--22(1) of the Act, which governs how dispositional
hearings are to be held." In re S.M., 223 Ill. App. 3d 543, 547,
585 N.E.2d 641, 644 (1992). Thus, the evidentiary rules that
apply to the dispositional hearing also apply to subsequent
permanency review hearings. S.M., 223 Ill. App. 3d 543, 585
N.E.2d 641.
The legislature gives trial courts wide latitude in
considering evidence at the dispositional stage of juvenile
wardship proceedings. In re White, 103 Ill. App. 3d 105, 429
N.E.2d 1383 (1982). Specifically, "[a]ll evidence helpful in
6
determining [whether it is in the minor's best interest to be
made a ward of the court] may be admitted and may be relied upon
to the extent of its probative value, even though not competent
for the purposes of the adjudicatory hearing." 705 ILCS 405/2--
22(1) (West 2006). Thus, at a dispositional hearing, it is
within the trial court's discretion to admit and consider
evidence that is helpful and relevant to the court's
determination of a proper disposition. See White, 103 Ill. App.
3d 105, 429 N.E.2d 1383.
However, even the most relevant evidence must be properly
admitted in order to be considered by a trial court. Belfield v.
Coop, 8 Ill. 2d 293, 134 N.E.2d 249 (1956). "It is well
established in Illinois that sound recordings, which are
otherwise competent, material and relevant, are [admissible into]
evidence if a proper foundation has been established to assure
the authenticity and reliability of the recordings." People v.
Melchor, 136 Ill. App. 3d 708, 711, 483 N.E.2d 971, 974 (1985).
A party lays a proper foundation when a participant to the
conversation or a person who heard the conversation while it was
taking place identifies the voices of the people in the
conversation and testifies that the tape accurately portrays the
conversation. People v. Cochran, 174 Ill. App. 3d 208, 528
N.E.2d 253 (1988). Further, in order to lay a proper foundation
for a sound recording, the defendant may not allege the existence
7
of any changes or deletions in the recording. People v. Johnson,
122 Ill. App. 3d 532, 461 N.E.2d 585 (1984).
The admissibility of evidence is within the sound discretion
of the trial court. In re Kenneth D., 364 Ill. App. 3d 797, 847
N.E.2d 544 (2006). A reviewing court will not disturb
evidentiary determinations absent a clear abuse of that
discretion. In re A.W., 231 Ill. 2d 241, 897 N.E.2d 733 (2008).
Our review of the record reveals that the recordings
purported to be of the respondent were not properly admitted by
the trial court because they lacked a proper foundation. Thus,
the court abused its discretion in admitting them.
Specifically, neither the respondent nor anyone else
testified as to whose voices could be heard on the tapes. More
importantly, no one testified whether the voices of the minors
were the voices of the instant minor children. Additionally, the
court did not hear any testimony regarding whether the tapes were
altered or if they accurately portrayed the conversations.
We acknowledge that the respondent admitted to calling
William. However, she left the courtroom before the tapes were
played, so her admission to making some calls does not
sufficiently authenticate the recordings played at the hearing.
In short, after it learned of the existence of some
telephone calls between the respondent, William, and Stephanie,
the court ordered the State to produce the tapes and play them in
8
open court. In doing so, however, neither side laid a foundation
to authenticate the tapes. As such, we conclude the tapes were
inadmissible.
Furthermore, it appears that the trial court relied solely
on the inadmissible tapes to find the respondent unfit. Our
review of the report of proceedings does not show that the court
made any oral pronouncements that show it would have ruled in the
same manner had it not heard the inadmissible tapes. Thus, the
admission of the inadmissible tapes was not harmless error. See
In re Marriage of Almquist, 299 Ill. App. 3d 732, 704 N.E.2d 68
(1998) (court noted the general principle that the admission of
inadmissible evidence is harmless if the State could meet its
burden of proof with evidence that was properly admitted).
Because we have determined the court erroneously admitted
the recordings, we need not reach the remaining issues presented.
We note in passing that if we were to reach the issue of whether
the respondent's counsel was ineffective for failing to object to
the admission of the inadmissible tapes, we would find that the
counsel's representation would meet both prongs of Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 647, 104 S. Ct. 2052
(1984). Specifically, counsel's conduct fell below an objective
standard of reasonableness because he failed to object to
inadmissible evidence. We believe there was no sound trial
strategy for failing to authenticate the tapes before they were
9
played in open court. Additionally, counsel's deficiency
prejudiced the respondent because the record shows that the court
relied solely on the inadmissible tapes to determine the
respondent was an unfit parent.
Based on the foregoing, we reverse the determination of the
trial court regarding the admission of the recordings, and we
remand the cause for further proceedings consistent with this
opinion.
CONCLUSION
The judgment of the circuit court of Tazewell County is
reversed and remanded.
Reversed and remanded.
LYTTON, J., concurs.
PRESIDING JUSTICE HOLDRIDGE, dissenting:
The majority holds that the trial court abused its
discretion in admitting the recordings at issue because they
lacked a proper foundation. The record clearly shows, however,
that no objection was made at hearing to the lack of foundation.
Thus the issue of proper evidentiary foundation was waived.
People v. DeLuna, 334 Ill. App. 3d 1, 19 (2002). A review of the
record shows that all parties acknowledged the identities of the
individuals who were heard on the tape. In point of fact, no
party challenged the admissibility of the recordings due to lack
of a proper foundation. Without an objection to foundation, the
10
trial court was within its discretion to find that the recordings
were admissible. Greig v. Griffel, 49 Ill. App. 3d 829, 841
(1977) (failure to object to lack of foundation waives all
objections to admissibility).
Moreover, not only were the recordings admissible, they were
relevant. It was undisputed that the respondent had pending
criminal charges stemming from the phone calls she made to
Stephanie. The record shows that a child was present and could
momentarily be heard during one of those calls. Further, as the
trial court determined, the respondent sounded intoxicated during
a series of calls made in the early morning hours. Thus, the
respondent’s conduct during these calls showed signs of an
inability to handle her anger, as well as alcohol or drug use to
the point of intoxication. This conduct was relevant to the
respondent’s fitness to be a parent. Because the recordings
offered evidence that was helpful and relevant to the
respondent’s fitness to parent her children, I would find that
the court did not abuse its discretion by admitting the recorded
telephone calls and messages. I would affirm the ruling of the
trial court. I therefore respectfully dissent.
11