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NAVIGATING THE JUVENILE COURT EVIDENTIARY LABRYINTH LOUIS P. MILOT.

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Presentation on theme: "NAVIGATING THE JUVENILE COURT EVIDENTIARY LABRYINTH LOUIS P. MILOT."— Presentation transcript:

1 NAVIGATING THE JUVENILE COURT EVIDENTIARY LABRYINTH LOUIS P. MILOT

2 RIGHTS OF PARTIES TO JUVENILE PROCEEDING RIGHT TO BE PRESENT RIGHT TO BE HEARD RIGHT TO PRESENT EVIDENCE RIGHT TO CROSS-EXAMINE RIGHT TO EXAMINE COURT FILE AND RECORDS RIGHT TO BE REPRESENTED BY COUNSEL

3 BASICS MATERIAL MATERIAL COMPETENT COMPETENT RELEVANT RELEVANT

4 SHELTER CARE/TEMPORARY PROTECTIVE CUSTODY HEARING/REHEARING  BURDEN OF PROOF: PROBABLE CAUSE PROBABLE CAUSE  RULES OF EVIDENCE: ILLINOIS SUPREME COURT RULES (R 216; 236; 238) ILLINOIS SUPREME COURT RULES (R 216; 236; 238) ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE (Sup. Ct. R. Evid ) ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE (Sup. Ct. R. Evid ) ILLINOIS RULES OF EVIDENCE MODIFIED BY SOME PARTS OF §2-18 OF JCA ILLINOIS RULES OF EVIDENCE MODIFIED BY SOME PARTS OF §2-18 OF JCA  ADMISSIBLE EVIDENCE: RELEVANT TO PROBABLE CAUSE THAT MINOR IS ABUSED, NEGLECTED OR DEPENDENT. 705 ILCS 405/2-10(1) 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 (1 st Dist. 1997)(Loss in weight of a few ounces ≠ immediate & urgent necessity)) RELEVANT TO IMMEDIATE AND URGENT NECESSITY FOR SHELTER-CARE (See In re R.M., 288 Ill. App. 3d 811, 681 N.E.2d 652 (1 st 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 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)

5 PRIMA FACIE EVIDENCE PER §2-18(2)(a-k)  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  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

6 PRIMA FACIE EVIDENCE 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) 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 Contradictory evidence must be produced

7 ADJUDICATORY HEARING BURDEN OF PROOF: BURDEN OF PROOF: PREPONDERANCE OF THE EVIDENCE PREPONDERANCE OF THE EVIDENCE RULES OF EVIDENCE: RULES OF EVIDENCE: ILLINOIS SUPREME COURT RULES (R 216; 236; ) ILLINOIS SUPREME COURT RULES (R 216; 236; ) ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE (Sup. Ct R. Evid ) ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE (Sup. Ct R. Evid ) ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS MODIFIED BY RULES SET FORTH IN §2-18 OF JCA ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCEDURE AS MODIFIED BY RULES SET FORTH IN §2-18 OF JCA Frye v U.S., 293 F (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) Frye v U.S., 293 F (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)

8 ADJUDICATORY HEARING 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) B, 968 N.E.2d 204 (3d Dist. 2012); STEIN v. KRISLOV, 939 N.E.2d 518 (1 st Dist. 2010) see also PEOPLE v. COX, 82 Ill. 2d 268, 274, 412 N.E.2d 541 (1980) 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) B, 968 N.E.2d 204 (3d Dist. 2012); STEIN v. KRISLOV, 939 N.E.2d 518 (1 st Dist. 2010) see also PEOPLE v. COX, 82 Ill. 2d 268, 274, 412 N.E.2d 541 (1980)

9 ADJUDICATORY HEARING ADMISSIBLE EVIDENCE : ADMISSIBLE EVIDENCE : EVIDENCE RELEVANT TO ALLEGATIONS EVIDENCE RELEVANT TO ALLEGATIONS STATUTORY ELEMENTS PER §2-3 OF JCA (e.g. factors to consider for inadequate supervision, etc.) STATUTORY ELEMENTS PER §2-3 OF JCA (e.g. factors to consider for inadequate supervision, etc.) PRIMA FACIE EVIDENCE DESCRIBED UNDER §2-18(2)(a-k) JCA PRIMA FACIE EVIDENCE DESCRIBED UNDER §2-18(2)(a-k) JCA EVIDENCE OF ANTICIPATORY NEGLECT PER §2-18(3) OF JCA EVIDENCE OF ANTICIPATORY NEGLECT PER §2-18(3) OF JCA HOSPITAL & AGENCY BUSINESS RECORDS PER §2-18(4)(a) JCA; “Agency” §1-3(3) JCA HOSPITAL & AGENCY BUSINESS RECORDS PER §2-18(4)(a) JCA; “Agency” §1-3(3) JCA INDICATED REPORTS PER §2-18(4)(b) OF JCA INDICATED REPORTS PER §2-18(4)(b) OF JCA PREVIOUS OUT-OF-COURT STATEMENTS OF MINORS PER §2-18(4)(c) OF JCA PREVIOUS OUT-OF-COURT STATEMENTS OF MINORS PER §2-18(4)(c) OF JCA EVIDENCE OF MINOR’S IMPROVING CONDITION WHEN OUTSIDE CARE OF PARENT/GUARDIAN PER §2-18(4)(f) OF JCA 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 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 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., 847 N.E.2d 544, et. al. ) SOME POST-PETITION EVIDENCE (No bright-line rule/test = relevance; In re Kenneth D., 847 N.E.2d 544, et. al. )

10 ANTICIPATORY NEGLECT 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) 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) 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)

11 DIRECTED FINDINGS Trial Court does not view the evidence most favorably to the Petitioner. 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) Trial court must weigh the evidence including evidence that favors the defendant/respondent. (Citation see materials)

12 DISPOSITIONAL HEARING o BURDEN OF PROOF :  PREPONDERANCE OF THE EVIDENCE o RULES OF EVIDENCE :  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:  Whether it is in the best interest of minor to be made a ward  If made a ward, the proper disposition best serving the health, safety and interest of the minor and public  The Permanency Goal  Nature of service plan for minor  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

13 DISPOSITIONAL HEARING o ADMISSIBLE EVIDENCE:  DISPOSITIONAL REPORT* PERTINENT TO SUBJECT MATTER OF DISPOSITIONAL HEARING  SOCIAL HISTORY REPORT* PERTINENT TO SUBJECT MATTER OF DISPOSITIONAL HEARING  REPORTS* SPECIFICALLY ORDERED BY THE COURT  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.)

14 PERMANENCY REVIEWS BURDEN OF PROOF BURDEN OF PROOF  REVIEW ONLY: NO BURDEN OF PROOF  DISPOSITIONAL MATTER: PREPONDERANCE OF THE EVIDENCE (e.g. parental fitness; change guardian, etc.)

15 PERMANENCY REVIEWS RULES OF EVIDENCE: 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: 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 405/2- 28

16 ADMISSIBLE EVIDENCE: PPPPERMANENCY REVIEW REPORT PERTINENT TO SUBJECT MATTER OF A PERMANENCY REVIEW PPPPARENTING ASSESSMENT REPORT PERTINENT TO SUBJECT MATTER OF PERMANENCY REVIEW HEARING RRRREPORTS SPECIFICALLY ORDERED BY THE COURT OOO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)

17 TERMINATION/UNFITNESS HEARING BURDEN OF PROOF: BURDEN OF PROOF:  CLEAR AND CONVINCING EVIDENCE RULES OF EVIDENCE: RULES OF 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: ADMISSIBLE EVIDENCE:  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

18 BEST INTEREST HEARING  BURDEN OF PROOF:  PREPONDERANCE OF THE EVIDENCE  RULES OF EVIDENCE:  ILLINOIS RULES OF EVIDENCE FOR CIVIL PROCDEURE AS MODIFIED BY §2-18 & 2-22 OF JCA §20 Adoption Act  ADMISSIBLE EVIDENCE:  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

19 SPECIAL ISSUES DISCUSSION DISCUSSION

20 THE END THANK YOU!!! THANK YOU!!!


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