Transcript navigating the juvenile court evidentiary labryinth

NAVIGATING THE
JUVENILE COURT
EVIDENTIARY
LABRYINTH
LOUIS P. MILOT
RIGHTS OF PARTIES TO JUVENILE
PROCEEDING
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RIGHT TO
RIGHT TO
RIGHT TO
RIGHT TO
RIGHT TO
RECORDS
RIGHT TO
BE PRESENT
BE HEARD
PRESENT EVIDENCE
CROSS-EXAMINE
EXAMINE COURT FILE AND
BE REPRESENTED BY COUNSEL
BASICS
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MATERIAL
COMPETENT
RELEVANT
SHELTER CARE/TEMPORARY PROTECTIVE CUSTODY
HEARING/REHEARING
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BURDEN OF PROOF:
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PROBABLE CAUSE
RULES OF EVIDENCE:
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ILLINOIS SUPREME COURT RULES (R 216; 236; 238)
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ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE (Sup. Ct. R. Evid. 101-1102)
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ILLINOIS RULES OF EVIDENCE MODIFIED BY SOME PARTS OF §2-18 OF JCA
ADMISSIBLE EVIDENCE:
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RELEVANT TO PROBABLE CAUSE THAT MINOR IS ABUSED, NEGLECTED OR
DEPENDENT. 705 ILCS 405/2-10(1)
RELEVANT TO IMMEDIATE AND URGENT NECESSITY FOR SHELTER-CARE (See In re
R.M., 288 Ill. App. 3d 811, 681 N.E.2d 652 (1st Dist. 1997)(Loss in weight of a few
ounces ≠ immediate & urgent necessity))
RELEVANT TO SHOW THAT REASONABLE EFFORTS HAVE BEEN MADE TO PREVENT
REMOVAL OR NO REASONABLE EFFORTS COULD HAVE BEEN OR WERE MADE TO
PREVENT REMOVAL OF MINOR FROM HOME
PRIMA FACIE EVIDENCE PER §2-18(2)(a-k)
PRIMA FACIE EVIDENCE PER §2-18(2)(a-k)
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Medical Diagnosis –
failure to thrive
Medical Diagnosis – fetal
alcohol syndrome
Medical Diagnosis –
narcotic/barbiturates
withdrawal
Medical Diagnosis –
battered child syndrome
Allowing/Encouraging
Minor to Perform/Offer to
Perform sex act
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Abnormal Injuries
Consistent with
Neglect/Abuse
Repeated Use of Drugs
by Parent/Guardian
Impairing User
Repeated use of
Controlled Substance by
Parent/Guardian
Presence of Minor around
Methamphetamine
manufacture
Forced labor/services of
minor in violation criminal
code
PRIMA FACIE EVIDENCE
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Presumptions of neglect or abuse created
by prima facie evidence only creates a
rebuttable presumption that may be
overcome by other evidence. In re K.G.,
288 Ill. App. 3d 728 (1997); In re Edrika
C., 276 Ill. App. 3d 18 (1995)
Contradictory evidence must be produced
ADJUDICATORY HEARING
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BURDEN OF PROOF:
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PREPONDERANCE OF THE EVIDENCE
RULES OF EVIDENCE:
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ILLINOIS SUPREME COURT RULES (R 216; 236; 238 . . .)
ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE (Sup. Ct R. Evid.
101-1102)
ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS MODIFIED BY
RULES SET FORTH IN §2-18 OF JCA
Frye v U.S., 293 F. 1013 (DC Cir. 1923); Donaldson v. Cent. Ill. Public Serv.
Co., 199 Ill. 2d 63, 77 (2002)(Sufficiently established to have gained general
acceptance in field)
ADJUDICATORY HEARING
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WHERE A STATUTE CONFLICTS WITH A
SUPREME COURT RULE OF EVIDENCE OR
DECISION ADOPTING A RULE OF EVIDENCE,
COURTS ARE TO FOLLOW THE SUPREME
COURT RULE OR DECISION. PEOPLE v.
PETERSON, 2012 Ill. App. (3d) 100514-B, 968
N.E.2d 204 (3d Dist. 2012); STEIN v. KRISLOV,
939 N.E.2d 518 (1st Dist. 2010) see also PEOPLE
v. COX, 82 Ill. 2d 268, 274, 412 N.E.2d 541
(1980)
ADJUDICATORY HEARING
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ADMISSIBLE EVIDENCE:
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EVIDENCE RELEVANT TO ALLEGATIONS
STATUTORY ELEMENTS PER §2-3 OF JCA (e.g. factors to consider for inadequate
supervision, etc.)
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PRIMA FACIE EVIDENCE DESCRIBED UNDER §2-18(2)(a-k) JCA
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EVIDENCE OF ANTICIPATORY NEGLECT PER §2-18(3) OF JCA
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HOSPITAL & AGENCY BUSINESS RECORDS PER §2-18(4)(a) JCA; “Agency” §1-3(3) JCA
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INDICATED REPORTS PER §2-18(4)(b) OF JCA
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PREVIOUS OUT-OF-COURT STATEMENTS OF MINORS PER §2-18(4)(c) OF JCA
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EVIDENCE OF MINOR’S IMPROVING CONDITION WHEN OUTSIDE CARE OF
PARENT/GUARDIAN PER §2-18(4)(f) OF JCA
EVIDENCE THAT MINOR IS CHRONIC TRUANT PER 2-18(5) OF JCA
JUDICIAL NOTICE PRIOR SWORN TESTIMONY/EVIDENCE INVOLVING SAME PARTIES IF
REPRESENTED PER §2-18(6) OF JCA
SOME POST-PETITION EVIDENCE (No bright-line rule/test = relevance; In re Kenneth D.,
ANTICIPATORY NEGLECT
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Proof of neglect as to one minor is admissible on
the issue of neglect of any other minor for
whom the parent is responsible. §2-18(3)
The mere admissibility of evidence does not
constitute conclusive proof of neglect of another
minor. In re Arthur H., 212 Ill. 2d 441 (2004);
No per se rule. In re J.C., 396 Ill. App. 3d 1050
(2009)
DIRECTED FINDINGS
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Trial Court does not view the evidence
most favorably to the Petitioner.
Trial court must weigh the evidence
including evidence that favors the
defendant/respondent. (Citation see
materials)
DISPOSITIONAL HEARING
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BURDEN OF PROOF:
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PREPONDERANCE OF THE EVIDENCE
RULES OF EVIDENCE:
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ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS MODIFIED BY §2-18 and §2-22 OF JCA
ALL EVIDENCE, INCLUDING ORAL AND WRITTEN REPORTS, HELPFUL TO DETERMINING THE FOLLOWING:
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Whether it is in the best interest of minor to be made a ward
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If made a ward, the proper disposition best serving the health, safety and interest of the minor
and public
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The Permanency Goal
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Nature of service plan for minor
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Services delivered and to be delivered under the service plan. 705 ILCS 405/2-22
A RECORD OF A PRIOR CONTINUANCE UNDER SUPERVISION §2-20
DISPOSITIONAL HEARING
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ADMISSIBLE EVIDENCE:
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DISPOSITIONAL REPORT* PERTINENT TO SUBJECT MATTER OF DISPOSITIONAL HEARING
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SOCIAL HISTORY REPORT* PERTINENT TO SUBJECT MATTER OF DISPOSITIONAL
HEARING
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REPORTS* SPECIFICALLY ORDERED BY THE COURT
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APART FROM FOREGOING REPORTS, OTHER HEARSAY EVIDENCE ALLOWED BY JCA AND
EVIDENCE RELEVANT TO DETERMINATION OF BEST INTEREST OF MINOR
*
In re Marriage of Bates, 212 Ill. 2d 489 (2004)(Constitutional right in custody matter:
Author of child representative report must be subject to cross-examination) see also 705
ILCS 405/2-22(c)(Fair opportunity to controvert report); 705 ILCS 405/2-28(2)(Caseworker
preparing report must appear in court in Per. Rv.)
PERMANENCY REVIEWS
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BURDEN OF PROOF
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REVIEW ONLY: NO BURDEN OF PROOF
DISPOSITIONAL MATTER: PREPONDERANCE
OF THE EVIDENCE (e.g. parental fitness;
change guardian, etc.)
PERMANENCY REVIEWS
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RULES OF EVIDENCE:
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ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS MODIFIED
BY RULES SET FORTH IN §2-18 OF JCA
ALL EVIDENCE, INCLUDING ORAL AND WRITTEN REPORTS, HELPFUL
TO REVIEWING THE FOLLOWING:
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Setting a permanency goal that is in the best interest of the
child
The child’s placement status
Setting a placement goal for the child
The appropriateness of the services delivered and to be
delivered under service plan to effectuate the permanency
goal
Reasonable efforts of parents and agency. 705 ILCS 405/228
PERMANENCY REVIEWS
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ADMISSIBLE EVIDENCE:
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PERMANENCY REVIEW REPORT PERTINENT TO SUBJECT
MATTER OF A PERMANENCY REVIEW
PARENTING ASSESSMENT REPORT PERTINENT TO SUBJECT
MATTER OF PERMANENCY REVIEW HEARING
REPORTS SPECIFICALLY ORDERED BY THE COURT
OTHER HEARSAY EVIDENCE ALLOWED BY JCA AND EVIDENCE
RELEVANT TO DETERMINATION OF BEST INTEREST OF THE
MINOR
“All evidence relevant to determining these questions, including
oral and written reports, may be admitted and may be relied on
to the extent of their probative value.” §2-28(2)
TERMINATION/UNFITNESS HEARING
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BURDEN OF PROOF:
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RULES OF EVIDENCE:
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CLEAR AND CONVINCING EVIDENCE
ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS
MODIFIED BY §2-18 OF JCA (In re Yasmine P., 328 Ill. App. 3d
1005 (2002)
CIVIL PRACTICE LAWS AND SUPREME COURT RULES PER §20
OF ADOPTION ACT. 750 ILCS 50/20
ADMISSIBLE EVIDENCE:
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EVIDENCE RELEVANT TO SPECIFIC ALLEGATIONS
EVIDENCE LIMITED BY SCOPE OF STATUTORILY PRESCRIBED
TIME PERIODS (REASONABLE PROGRESS/EFFORTS 9 MONTH)
GUILTY PLEAS IF RELEVANT
NOT ENTIRE JUVENILE COURT FILE
BEST INTEREST HEARING
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BURDEN OF PROOF:
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RULES OF EVIDENCE:
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PREPONDERANCE OF THE EVIDENCE
ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCDEURE AS MODIFIED
BY §2-18 & 2-22 OF JCA §20 Adoption Act
ADMISSIBLE EVIDENCE:
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SAME EVIDENCE AS ALLOWED AT DISPOSITIONAL HEARING
BEST INTEREST REPORT PERTINENT TO SUBJECT MATTER
EVIDENCE PERTAINING TO BEST INTEREST FACTORS PER §1-3 OF JCA AND
§15.1 OF ADOPTION ACT
REPORTS SPECIFICALLY ORDERED BY COURT (e.g. bonding assessments, etc.)
OTHER EVIDENCE CONCERNING THE BEST INTEREST OF THE MINOR
SPECIAL ISSUES
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DISCUSSION
THE END
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THANK YOU!!!