People v. Kevin S.

JUSTICE O’MALLEY,

dissenting:

In an enthusiastic misapplication of the best-interest-of-the-child standard, the majority leaps over the trial court and even beyond respondent’s request and precipitously awards custody to respondent despite the fact that the majority acknowledges that there is credible evidence that respondent has engaged in sexual abuse of children. It then proceeds to leap beyond any and all issues in this appeal to warn the State, in a purely advisory way, that even if it thinks that this child “is jeopardized by living with her father” (343 Ill. App. 3d at 189), any further efforts to protect her may yield to “res judicata, estoppel by judgment, and any other appropriate estoppel” doctrines (343 Ill. App. 3d at 189). All of this in a case where the best interest of the child is supposed to be paramount.

Additionally, the majority incorrectly concludes that neglect is adjudicated separately with respect to each parent under the Juvenile Court Act (Act) when it holds that the trial court’s finding of neglect was against the manifest weight of the evidence “as to respondent.” Because the finding of neglect was not improper, the trial court’s order was within its authority to conduct an investigation under section 2 — 21(2) (705 ILCS 405/2 — 21(2) (West 2000)). The trial court, however, needed to make a finding at the dispositional phase on respondent’s fitness before it placed K.S. in the guardianship of DCFS. I would remand to the trial court so that an investigation can be conducted pursuant to section 2 — 21(2), as well as any other appropriate procedures available to aid the trial court at the dispositional hearing, so that the trial court can make a determination on respondent’s fitness.

On the issue of whether neglect is adjudicated separately with respect to each parent, there is a split among our districts, and even among the justices of this district. Consequently, this point will require a rather detailed analysis of the language of the Act. I attempt such an analysis herein.

In my view, however, the most egregious error committed by the majority is that it precipitously awards KS.’s custody to respondent while at the same time conceding that there is “credible evidence” that he committed sex abuse (343 Ill. App. 3d at 181) and where in his prayer for relief respondent does not even ask for custody to be returned to him. The majority accuses me of not having read or understood the portion of the argument section of respondent’s brief where he claims that the trial court erred by failing to award him custody of K.S. Obviously, I have read it, and I think that I understand it. In his prayer for relief respondent asks only that the trial court be reversed and the cause be remanded for further proceedings. What I see as significant is that, although respondent undoubtedly wanted custody, he never imagined that this court would actually give it to him. Even he realizes that our granting him custody at this point is grossly inappropriate.

Awarding custody of K.S. to respondent at this point directly contradicts the express mandate of the Act. Section 2 — 10(2) of the Act provides:

The trial court made a finding that an immediate and urgent necessity existed to remove K.S. from her home and place her in a shelter care facility. That finding was based in part on the risk that respondent would sexually harm K.S. The trial court has not made a finding that “placement is no longer necessary for the protection of the minor” as section 2 — 10(2) requires for custody to be returned to a parent. 705 ILCS 405/2 — 10(2) (West 2000). What is more, the majority does not even make such a finding. Its basis for awarding custody of the minor to respondent is that there is “no judgment or pending cases against respondent.” 343 Ill. App. 3d at 188. By now granting custody of K.S. to respondent, the majority is doing what the legislature has expressly forbidden — awarding custody to a parent without first finding that shelter care placement is no longer necessary for the protection of the minor.

“Once the court finds that it is a matter of immediate and urgent necessity for the protection of the minor that the minor be placed in a shelter care facility, the minor shall not be returned, to the parent, custodian or guardian until the court finds that such placement is no longer necessary for the protection of the minor.” (Emphasis added.) 705 ILCS 405/2 — 10(2) (West 2000).

To make matters worse, because respondent’s prayer for relief does not ask us to grant him custody, the State has had no opportunity to present an argument that shelter care is still necessary for the protection of K.S. The State was not on notice that the issue was being decided in this appeal; as a result, we have not even heard what the State has to say on this issue.

The following chronology of events leading up to the award of custody of K.S. to respondent highlights the majority’s error: DCFS becomes involved with K.S. because of respondent’s alleged sexual abuse of both KS.’s sibling and cousin. Pursuant to a DCFS safety plan, KS.’s mother is ordered not to allow K.S. to have contact with respondent. KS.’s mother allegedly savagely murders KS.’s infant sibling. A petition for adjudication is brought regarding K.S. The trial court finds an immediate and urgent necessity to place K.S. in shelter care. An “indicated” DCFS report regarding respondent’s alleged sex abuse is distributed to the parties. The abuse count alleging that respondent committed sex abuse as well as the counts relating to the murder are dropped when the mother stipulates to neglect based on her violation of the DCFS safety plan by allowing contact between K.S. and respondent. The court finds K.S. to be neglected and, among other things, orders respondent to complete a sex offender evaluation. Respondent fails to complete the evaluation. At the dispositional phase, the trial court again orders respondent to complete a sex offender evaluation. Respondent appeals. The majority orders custody given to respondent.

It seems apparent that, when the neglect petition was filed, respondent already did not have custody of K.S. because the mother’s DCFS safety plan specifically provided that respondent was not to have contact with K.S. Further, neither the DCFS safety plan nor any of the records regarding KS.’s involvement with DCFS prior to the filing of the neglect petition are part of the record in this appeal. We do not know what occurred in those proceedings, nor do we know the precise facts and circumstances surrounding the safety plan. It simply makes no sense for us to, in effect, overrule those proceedings when they are not before us. The trial court should craft the disposition in this case because it is better aware of the facts and in a superior position to fill in missing facts. In fact, the trial court is in a position to find out if the State intends to file a new petition “as to” respondent and, if it sees fit, can even order the State to file one (see In re D.S., 198 Ill. 2d 309, 332-33 (2002)). I believe that the majority has acted precipitously by granting relief neither requested by respondent nor available under the Act. Skipping the step of remanding the case to the trial court runs the risk of allowing harm to K.S. that could have been prevented. The majority makes a grave mistake by doing so.

Next, the majority in a purely advisory opinion states that “the doctrines of res judicata, estoppel by judgment, and any other appropriate estoppel” (hereinafter res judicata) may apply to a new petition brought by the State based on respondent’s alleged sexual abuse. 343 Ill. App. 3d at 189. I do not see the point of advising the parties what may apply, especially where the majority’s hypothesizing on res judicata directly contradicts its own notions about neglect being adjudicated separately with respect to each parent. According to the majority, “the only allegation of neglect that the State did not withdraw alleged that Valerie created an injurious environment for K.S. because she did not follow the DCFS safety plan” and “no allegations against respondent remained.” 343 Ill. App. 3d at 185. If the majority really believes that neglect is separate with respect to each parent, then the issue of neglect “as to” respondent was not tried because the count regarding respondent’s conduct was dropped. The majority’s point is that the issue of neglect “as to” respondent was dropped and was never decided. Thus, under its theory, res judicata would not apply.

Moreover, even if the issue of neglect “as to” respondent had been before the court, res judicata would not apply because the doctrines do not apply with full force to a child custody case. It has been held that “[cjourts should be cautious in determining when to apply res judicata in child custody cases.” In re Marriage of Weaver, 228 Ill. App. 3d 609, 616 (1992). Further, “[res judicata] should not be strictly applied to bar evidence when the most important consideration is the welfare of the child.” Weaver, 228 Ill. App. 3d at 616. Although the Weaver line of cases comes from divorce custody proceedings, its logic applies with equal force to juvenile court proceedings because the primary purpose of both is to protect the best interests of the child. If respondent confessed tomorrow that he had sexually abused the two minor children, the majority would nonetheless order K.S. to be placed in and to remain in the custody of respondent in deference to principles of res judicata. Such a rule clearly contravenes the Act’s purpose of protecting the best interest of the child and is not the law. Moreover, the majority fails to explain why it chooses to interject (in a purely advisory way) this point at all.

The majority concludes that “the court’s judgment of neglect as to respondent was against the manifest weight of the evidence.” 343 Ill. App. 3d at 188. Neglect is not determined “as to” a particular parent; it refers only to the condition of the child. In re R.B., 336 Ill. App. 3d 606, 614-15 (2003). As one judge explained, “parents are not adjudicated neglectful at the adjudicatory stage of the proceedings under the Act; rather, minors are adjudicated neglected.” In re Arthur H., 338 Ill. App. 3d 1027, 1042 (2003) (Kapala, J., dissenting). In fact, nowhere does the Act mention neglect “as to” a particular parent. That an adjudication of neglect is not specific to a parent is clear from the plain language of the Act, which provides that, at the adjudicatory phase, “the court shall determine whether or not the minor is *** neglected.” 705 ILCS 405/2 — 21(1) (West 2000). Critically, section 2 — 21(1) does not direct the court to determine whether the minor is neglected “as to” each parent. Rather, the sole question for the court to determine is whether the child is neglected as defined in the Act. Section 2 — 3 (705 ILCS 405/2 — 3 (West 2000)) defines neglect based solely on the condition of the child. For example, section 2 — 3(l)(b) defines as neglected “any minor under 18 years of age whose environment is injurious to his or her welfare.” 705 ILCS 405/2 — 3(l)(b) (West 2000). I fail to see how a child could meet this definition, but meet it only as to one parent. The definition focuses exclusively on the child and does not in any way reference the parents. Thus, the issue of which parent is responsible is irrelevant to an adjudication of neglect. Neglect “do[es] not address the question of who may be responsible for such adverse conditions because, in the first instance, that question does not matter.” R.B., 336 Ill. App. 3d at 614. What matters in the first instance is solely whether or not the child’s “environment is injurious to his or her welfare.” 705 ILCS 405/2 — 3(l)(b) (West 2000).

In In re Chyna B., 331 Ill. App. 3d 591 (2002), the minor was found to be neglected because “respondent mother had failed to correct the conditions that resulted in a prior adjudication of unfitness to exercise guardianship and/or custody of the minor’s sibling.” Chyna B., 331 Ill. App. 3d at 593. Although the allegation in the neglect petition concerned actions only of the mother, the Fourth District affirmed the trial court’s decision that the neglect finding also applied to the father:

“It was unnecessary for the trial court to find that Chyna B. was neglected on the basis of any action or inaction by respondent father. Chyna B. fit the definition of ‘any minor under 18 years of age whose environment is injurious to his or her welfare’ (705 ILCS 405/2 — 3(l)(b) (West 2000)) by reason of respondent mother’s actions and respondent father’s inactions in failing to correct the conditions of which he was aware. A minor child may be found neglected even though the primary fault for creating the injurious environment rests with one parent.” Chyna B., 331 Ill. App. 3d at 596.

There is good reason not to determine neglect separately “as to” each parent. The adjudicatory phase is too early in the proceedings to make a final determination on the issue of who is responsible for the neglect because all of the relevant information is not yet available. After a child is adjudicated neglected, section 2 — 21(2) gives the trial court the power to order an investigation of, among other things, the child’s family situation to assist it at the dispositional hearing. 705 ILCS 405/2 — 21(2) (West 2000). As the supreme court has noted, “other serious conditions, existing at the time the child is removed, may become known only after removal, following further investigation of the child, parent and family situation.” In re C.N., 196 Ill. 2d 181, 214 (2001).1 It would make little sense to make a final determination on parental responsibility before the results of the investigation were available to the court. As the R.B. court explained, “[i]f the State proves the neglect allegation, then causation — and remediation — can and should be addressed by the trial court at the dispositional hearing.” R.B., 336 Ill. App. 3d at 615. Moreover, the trial court does make, “to the extent possible,” a preliminary finding on the issue of parental responsibility at the adjudicatory phase under section 2 — 21(1). 705 ILCS 405/2 — 21(1) (West 2000). Parents whose actions or omissions are not found under section 2 — 21(1) to be the basis of the neglect finding are treated differently at the dispositional phase. See 705 ILCS 405/2 — 23(a) (West 2000). For this reason, such parents are not “stigmatized” as the majority suggests. 343 Ill. App. 3d at 186.

The majority’s misguided notion that a child is adjudicated neglected separately with respect to each parent can be traced to In re S.S., 313 Ill. App. 3d 121 (2000). That case concluded that it was “necessary to determine the neglect allegations as to both parents” because of section 2 — 27’s (705 ILCS 405/2 — 27 (West 2000)) provision that “both parents must be adjudged unfit or unable to care for the child before placement with DCFS is authorized.” S.S., 313 Ill. App. 3d at 127. S.S. explicitly based its holding on section 2 — 27. S.S., 313 Ill. App. 3d at 127. The problem is that S.S. applied section 2 — 27 to the wrong stage of the proceedings. Section 2 — 27 speaks only to the requirements for placing a child in the custody of DCFS at the dispositional stage. 705 ILCS 405/2 — 27 (West 2000). This “fitness” finding has nothing whatsoever to do with adjudicating a child neglected, which neither places a child in the custody of DCFS nor is done at the dispositional stage. 705 ILCS 405/2 — 21 (West 2000). Thus, section 2 — 27 provides no support for the premise that children are adjudicated neglected separately with respect to each parent. The mistake is then repeated in Arthur H., which cites S.S., but not any provision of the statute, for the same rule. Arthur H., 338 Ill. App. 3d at 1034.

The majority apparently concedes that the reasoning behind S.S., and by extension Arthur H., was specious, as it attempts no defense of the section 2 — 27 rationale behind those cases. The majority, however, has posited an alternative argument in favor of the same rule. According to the majority, the Adoption Act’s provision that parental rights may be terminated for “[flailure by a parent (i) to make reasonable efforts to correct the conditions that were the basis for the removal of the child from the parent, or (ii) to make reasonable progress toward the return of the child” is inconsistent with a general adjudication of neglect. 750 ILCS 50/l(D)(m) (West 2000). Initially, I note the oddity that the majority looks to a provision of the Adoption Act to determine the meaning of the language of section 2 — 3 of the Juvenile Court Act instead of looking at the language of section 2 — 3 itself. Even ignoring this problem, I disagree with the majority’s reasoning. Section l(D)(m) of the Adoption Act references a parent’s failure to correct the condition that was the basis for removal of the child, not the basis for adjudication of neglect.2 Thus, I fail to see where section l(D)(m) has any bearing on an adjudication of neglect, let alone where it suggests that an adjudication of neglect is done separately “as to” each parent. Moreover, the unfitness finding necessary for removal, unlike an adjudication of neglect, actually is done separately with respect to each parent. 705 ILCS 405/2 — 27 (West 2000); In re M.K., 271 Ill. App. 3d 820, 828 (1995).

The majority proceeds to make the unsupported claim that the “definite purpose” of section 2 — 21(1) of the Act, which requires the trial court to “specify, to the extent possible, the acts or omissions or both of each parent *** that form the basis of the court’s findings” (705 ILCS 405/2 — 21(1) (West 2000)), is to “set forth the grounds that would ultimately provide for a termination of parental rights if there were no reasonable efforts to correct [them].” 343 Ill. App. 3d at 186. Because section 1(D) (m) requires the parent to correct the condition that was the basis for removal, not to correct the condition that was the basis for the adjudication of neglect, it would seem more logical for the court at the termination hearing to look at the written factual basis for the finding of unfitness required by section 2 — 27 that led directly to the removal. Additionally, the more explicit “definite purpose” of the trial court’s findings made pursuant to section 2 — 21(1) is to determine under what circumstances custody of a minor in shelter care may be restored to a parent at the dispositional phase:

“[I]n any case in which a minor is found by the court to be neglected or abused under Section 2 — 3 of this Act, custody of the minor shall not be restored to any parent *** whose acts or omissions or both have been identified, pursuant to subsection (1) of Section 2 — 21, as forming the basis for the court’s finding of *** neglect, until such time as a hearing is held on the issue of the best interests of the minor and the fitness of such parent *** to care for the minor without endangering the minor’s health or safety, and the court enters an order that such parent *** is fit to care for the minor.” 705 ILCS 405/2 — 23(a) (West 2000).

Significantly, the part of section 2 — 23(a) that distinguishes parents found to be at fault under section 2 — 21(1) is surplusage if an adjudication of neglect is separate “as to” each parent. Under the majority’s rule, the child of a parent not responsible for “forming the basis of the court’s finding of *** neglect” is not neglected “as to” that parent in the first place. If this rule were accurate, there would be no point to distinguishing parents who had been found to be responsible for the neglect under section 2 — 21(1) because all parents whose child was neglected “as to” them would necessarily be responsible for the neglect. The use of the section 2 — 21(1) finding to distinguish parents responsible for the neglect would be pointless and surplusage. I think that the Act is clear that an adjudication of neglect is not specific “as to” a parent.

Next, the trial court’s determination that K.S. was neglected was not against the manifest weight of the evidence. “A minor child may be found neglected even though the primary fault for creating the injurious environment rests with one parent.” Chyna B., 331 Ill. App. 3d at 596. K.S. lived with her mother. The mother is alleged to have murdered K.S.’s infant sibling in a particularly horrific fashion. Possibly because she was charged with murder, the mother thought it prudent to stipulate to neglect based on facts unrelated to the death of K.S.’s sibling. Given the fact that K.S. lived with her mother, who has stipulated to neglect, the trial court’s finding that K.S. was neglected was not against the manifest weight of the evidence.

The majority apparently has some problem regarding stipulated testimony although it never explains what that problem is. The majority states that the “court never heard any direct evidence” (emphasis in original) (343 Ill. App. 3d at 181) regarding the sexual abuse, “only a stipulation” (emphasis added). 343 Ill. App. 3d at 181. The majority complains that the court heard only what “caseworker Martinez would testify to if she were called to testify.” (Emphasis in original.) 343 Ill. App. 3d at 181. Stipulations are encouraged and commonplace. Underlining a description of them does not call into question their reliability. What is notably absent from the majority’s lamentations regarding the stipulated testimony is any comment regarding an objection by respondent to allowing Martinez’s testimony to come in only through stipulation.

Incredibly, the majority repeatedly emphasizes that respondent was not part of the reason this child was found to be neglected. The majority notes that the only basis for the neglect finding was that Valerie did not follow the safety plan and then states that “all evidence related to Valerie, not respondent.” (343 Ill. App. 3d at 185). I find this statement amazing and I cannot comprehend how the majority can suggest that respondent had nothing to do with the safety plan. The plan had only one purpose, to keep respondent away from the child. The violation was that he had contact with the child. Furthermore, even if respondent did not agree with the safety plan, he did not have the right to act in defiance of the trial court and violate it. In Chyna B., where the allegation in the neglect petition mentioned only the conduct of the mother, the court, nevertheless, held that the father failed to “correct the conditions of which he was aware.” Chyna B., 331 Ill. App. 3d at 596. Here, respondent was not just aware of the condition that was the basis of the neglect petition; he was the condition.

Once K.S. was adjudicated neglected, it was within the trial court’s discretion to order a sex offender evaluation because there was evidence presented that respondent had committed a sex offense. The majority relies on its view that respondent’s alleged commission of a sex offense was “uncharged” in the neglect petition. However, our supreme court has held that even if an issue is not alleged in the neglect petition, it can still be a basis for a service plan or dispositional order. C.N., 196 Ill. 2d at 214. The supreme court stated that “the relevant issues are not ‘frozen’ at the moment custody of the child is taken.” C.N., 196 Ill. 2d at 213-14. Rather, the necessity of considering other conditions that later come to light is reflected in the “broad scope” of the investigation that the trial court is authorized to order under section 2 — 21(2) (705 ILCS 405/2 — 21(2) (West 2000)), after an adjudication of neglect. C.N., 196 Ill. 2d at 214. Thus, “it makes no sense to so narrowly limit what the trial court can order a respondent parent to do following an adjudication of neglect, abuse, or dependency.” In re C.S., 294 Ill. App. 3d 780, 789 (1998); see also Chyna B., 331 Ill. App. 3d at 597-98 (“the conditions of a dispositional order need not relate solely to the grounds for adjudication of wardship”).

The trial court had the discretionary power to order an investigation into the alleged sex abuse under the “broad scope” (C.N., 196 Ill. 2d at 214) of section 2 — 21(2) (705 ILCS 405/2 — 21(2) (West 2000)). Section 2 — 21(2) provides:

“To assist the court in [deciding whether it is in the best interests of the minor to be made a ward of the court] and other determinations at the dispositional hearing, the court may order that an investigation be conducted and a dispositional report be prepared concerning the minor’s physical and mental history and condition, family situation and background, economic status, education, occupation, history of delinquency or criminality, personal habits, and any other information that may be helpful to the court.” (Emphasis added.) 705 ILCS 405/2 — 21(2) (West 2000).

Given that there was evidence presented, hearsay or otherwise, that respondent committed a sex offense, it was not an abuse of discretion for the trial court to order further investigation before placing custody of K.S. with respondent. The majority misses the point when it states that “ ‘possible’ [sex abuse] does not rise to the level of proof necessary to order a man to undergo an evaluation and possible counseling for sexual abuse.”3 343 Ill. App. 3d at 183. It is paradoxical to require the trial court to have proof of sex abuse before it can order an investigation of sex abuse. Obviously, it makes no sense to make proof a prerequisite to ordering an investigation, the purpose of which is to determine whether there is proof. The majority cites In re Baby Boy Butt, 76 Ill. App. 3d 587 (1979), for the premise that an order based on possible sex abuse is “patent error.” 343 Ill. App. 3d at 183. Butt, however, dealt with the proof necessary to place a child in the guardianship of DCFS, not the amount of evidence necessary to order an investigation under section 2 — 21(2). In re Butt, 76 Ill. App. 3d at 594. There is a wide chasm between these two issues. Thus, Butt is inapplicable. The hearsay evidence that one of K.S.’s siblings and K.S.’s cousin accused respondent of sexually molesting them was enough to justify an investigation under section 2 — 21(2).

The real question is whether the sex offender evaluation fits within the “broad scope” (C.N., 196 Ill. 2d at 214) of the investigatory powers granted to the trial court under section 2 — 21(2). The majority then states that “[cjompletion of the evaluation would not establish whether respondent sexually molested T.V” 343 Ill. App. 3d at 182. The majority then proceeds to “shudder[ ] to consider what other mischief could occur if uncharged *** allegations are mistaken for evidence.” 343 Ill. App. 3d at 182. I do not understand how the majority is so sure what the evaluation would or would not establish. The only thing we know about what the evaluation process would entail is what the trial court said about it. According to the trial court, the evaluators were to review the reports and the children’s statements to see if there were credible recantations and to see “ ‘whatever the situation is.’ ” (Emphasis added.) 343 Ill. App. 3d at 180. The majority apparently has become hung up on the label, “evaluation,” and drawn some unstated and unjustified conclusions based on that word. In fact, as the trial court clearly indicated, it expected that the “evaluation” would be exactly the kind of investigation contemplated by section 2 — 21(2). Such a process might very well establish whether there were credible recantations by the children or a confession by respondent or, of course, any of the unlimited possibilities between those two extremes.

The majority never states what the evaluation will entail, but I surmise that it concludes that the evaluation will be limited to some sort of psychological profile of respondent. Nothing in the record supports such an assumption, and the comments of the trial court that ordered it absolutely belie it. But even if the trial court had ordered only a psychological profile, I see the trial court’s responsibility and discretion under section 2 — 21(2) as broad enough to allow this. It is not unreasonable that respondent should be asked to participate in the investigation, given the unique nature of juvenile proceedings.

Even if the majority believes that the sex offender evaluation is outside the scope of section 2 — 21(2), it is still inappropriate to reverse the neglect finding, let alone place K.S. in respondent’s custody. The majority would be better served to remand to the trial court, either so that it can clarify what it meant by a sex offender evaluation or so that it can order an investigation that conforms to whatever the majority believes the “broad” scope of section 2 — 21(2) to be.

Focusing on what in fact the trial court contemplated in its order demonstrates the majority’s error in accusing the trial court of abdicating its role as fact finder. The majority quotes the trial court’s explanation, chiding it by italicizing for emphasis each of the trial court’s acknowledgments of what it did not know. See 343 Ill. App. 3d at 182. These acknowledgments were hardly abdications; they were exactly the sorts of things the Act contemplates will be investigated pursuant to section 2 — 21(2). The trial court never said that it intended to automatically adopt the report generated by the evaluation process or that respondent would be prohibited from challenging it at the dispositional hearing. Thus, the majority’s charge that the trial court “relied on the sexual offender evaluation to prove whether respondent was guilty of the claimed sexual offenses” (343 Ill. App. 3d at 182) is unfounded. As section 2 — 21(2) expressly states, the report is to assist the court at the dispositional hearing. It makes no sense to accuse the trial court of abdicating its role when it orders proceedings authorized by the Act to assist it.

The majority states: “[W]e must point out the fallacy of the court’s reasoning. We are unaware of any authority that has determined, pursuant to [Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),] that such an evaluation may be so utilized.” 343 Ill. App. 3d at 182. The majority’s sua sponte suggestion that a sex offender evaluation fails the Frye test is erroneous. In Frye, a federal appellate court affirmed a district court’s determination that a lie detector test had not “yet gained such standing and scientific recognition among physiological and psychological authorities” as would justify the courts in admitting it. Frye, 293 F. at 1014. Here no party has raised Frye or adduced evidence about the scientific standing of a sex offender evaluation. Worse, we do not even know what is meant by the term “sex offender evaluation.” Thus, there is no basis at this point for the majority to even offer a guess as to whether or not the evidence yet to be produced by the evaluation will be admissible under Frye.

Finally, the majority states: “Apparently, the dissent sees no limit to the size of the net the trial court may cast to find information, as it would allow unreliable, tertiary hearsay to preclude respondent from determining the truth of the charges brought by a nonparty.” 343 Ill. App. 3d at 183. This is a perplexing statement. Use of hearsay evidence is specifically authorized by the Act. 705 ILCS 405/2 — 18(4)(c), 2 — 22(1) (West 2000). Whether or not the hearsay evidence was “tertiary” misses the point. Respondent does not question that the two children accused him of sex abuse but, rather, maintains that the children lied. Thus, the factual content of the Catholic Charities report, i.e., whether or not the two children said that respondent sexually abused them, was never at issue. The record shows that the DCFS report, on which the Catholic Charities report was based, was distributed to the parties. It was not entered into evidence because there was no reason for it to be. In this case, there was no functional difference between “tertiary” evidence and simple hearsay, and the Act specifically authorizes consideration of hearsay without limitation on the basis of it being “tertiary.” 705 ILCS 405/2 — 18(4)(c), 2 — 22(1) (West 2000). The majority’s assertion that the use of hearsay evidence precludes respondent from “determining the truth of the charges brought by a nonparty” (343 Ill. App. 3d at 183) is a monumental overstatement. It is true that use of hearsay evidence prevents respondent’s cross-examination of the witness. However, this handicap is compensated for by the fact that the hearsay evidence is accorded lesser weight. 705 ILCS 405/2 — 18(4)(c) (West 2000). Although respondent did not avail himself of this opportunity, the hearsay evidence did not prevent him from putting on a defense at the hearing and attempting to discredit both accuser and accusation. Importantly, the stipulated testimony and the hearsay evidence are not being used to force respondent to undergo sex offender treatment or, for that matter, as a basis for an unfitness finding under section 2 — 27. They are being used as a basis to find more information pursuant to section 2 — 21(2). In my view, this purpose is properly commensurate with the lower weight accorded to hearsay evidence.

The current procedural posture of this case presents a significant issue. The trial court entered a dispositional order that gave guardianship of K.S. to DCFS and placed her in the custody of her maternal grandmother. Section 2 — 27, however, requires that before the trial court may take such action it must make a determination that “the parents, guardian, or legal custodian of [the] minor adjudged a ward of the court are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor or are unwilling to do so, and that the health, safety, and best interest of the minor will be jeopardized if the minor remains in the custody of his or her parents, guardian or custodian.” 705 ILCS 2 — 27(1) (West 2000). The trial court made no such finding.

The matter should be remanded (as respondent requests) so that the trial court can conduct a hearing to determine respondent’s fitness and ability to care for K.S. The trial court should have available the reports generated as a result of any evaluations or investigations conducted pursuant to section 2 — 21(2). Obviously respondent may participate in such a hearing. Consequently, the majority is wrong when it defends its position by complaining that, otherwise, actions will be taken against respondent without a hearing and the opportunity to respond to the allegations.

I close by distancing myself from the demeaning tone that the majority has taken towards the trial court. For example, the majority states, “one shudders to consider what other mischief could occur if uncharged, unsubstantiated, and unproved allegations are mistaken for evidence.” 343 Ill. App. 3d at 182. The implication that the trial court was guilty of “mischief’ is uncalled for. Generally, these types of cases are emotionally difficult for everyone involved, including trial judges. This case is particularly gut wrenching given that it involves the gruesome murder of an infant and the possible sex abuse of other children. The trial court stated: “[Tjhere is a founded report [regarding sex abuse]. There was a statement made by one of the girls. And that you are the father of a young girl, and that I have to make sure she is protected.” The job of the trial courts in these cases is difficult enough. Even when they err, there is no need for us to insult them. Furthermore, it is not error, let alone mischief, to attempt to protect children from such an injurious environment. That the majority sees the evidence differently than the trial court does not mean that the trial court engaged in anything other than trying to reach the right result in this case.

For the reasons outlined above, I would remand for further proceedings consistent with my dissent.

The majority points out that C.N. makes reference to a trial court’s finding of neglect as to the mother that occurred prior to a second adjudication of neglect that applied to both parents. C.N., 196 Ill. 2d at 184. However, C.N. merely described the trial court’s actions and did not address the issue of whether neglect is determined separately “as to” each parent. C.N., 196 Ill. 2d at 184. Additionally, C.N. is factually distinct because, in that case, the father appears to have had no notice of the neglect proceeding that the majority points to. C.N., 196 Ill. 2d at 184.

While these two determinations are in some respects similar, they are made at different stages of the proceedings and the factual basis of each, which may or may not consist of the same facts (see In re C.N., 196 Ill. 2d 181 (2000)), is recorded by the court in a separate written finding.

Although the majority intermittently refers to sex abuse counseling in its opinion, the trial court at no time ordered sex abuse counseling.