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FIFTH DIVISION
December 28, 2001

No. 1-00-0529

On June 15, 1999, the State filed a petition for adjudicationof wardship alleging that D.P., a minor, was both neglected andabused by his mother and respondent. Respondent made two motionsto continue the hearing until the outcome of his pending criminaltrial arising from respondent's beating of the minor. The trialcourt denied both motions. Following an adjudicatory hearing onNovember 19, 1999, a finding of neglect and abuse was entered. OnJanuary 19, 2000, D.P. was adjudicated a ward of the court and theDepartment of Children and Family Service (DCFS) was appointedguardian.

On appeal respondent argues that his case must be remanded fora new hearing where the trial court's refusal to continue theadjudication proceedings until after his criminal trial violatedhis fifth amendment rights against self-incrimination.

I. Background

The minor, D.P., was born on March 13, 1999. On June 15,1999, a petition for adjudication of wardship was filed against hisfather, Jesse C., and his mother, Patty P. The petition allegedthat on May 25, 1999, Jesse shook D.P. violently and struck him inthe face. On August 26, 1999, the juvenile court heard a pretrialdefense motion to continue the adjudication proceedings until theoutcome of respondent's pending criminal charges which arose fromthe respondent's alleged abuse of the minor. The court denied themotion, stating that the best interest of the child required thecourt to hold the proceedings in 90 days. The court noted that ithad already granted one continuance exceeding the 90 days in orderto obtain D.P.'s birth records.

On November 17, 1999, just prior to the hearing on theadjudication of wardship of the minor, D.P., respondent renewed hisAugust 26 oral motion for a continuance. Respondent againrequested that the matter be heard subsequent to the resolution ofthe criminal charges pending against respondent. Respondent'scounsel maintained that "it's important that the father has theright to participate fully in his defense in this matter involvinghis son." The trial court denied the motion stating "criminalcases can go on for two years***I will not grant the continuancefor that reason." Respondent's counsel again renewed the motionon November 18, stating that Jesse would be unable to present acomplete defense because the pending criminal matter prevented himfrom participating in his defense. The court again denied themotion. The case proceeded to hearing.

During the hearing, Detective Scott Rotkovich testified thaton May 26, 1999, he was a violent crimes detective assigned toinvestigate the aggravated battery of a two-month-old child namedD.P. Rotkovich testified that on that date, at approximately 1a.m., he took a statement from D.P.'s father, respondent Jesse C.. The statement contained the following information:

"Jesse [C.] stated that he is 26 years old and iscurrently residing at 4000 East 134th Street, trailer lotnumber 1225. Jesse currently lives at that address withhis girlfriend, Patricia, and their son, [D.P.]. Jessestated that it was a stressful situation because he hadsome problems in Indiana, was going to school and wasbarely paying the bills. Jesse remarked that Patty wasimmature and not 'owning up' to her own responsibilities. Jesse stated that he was tired of coming home to fastfood, a crying baby and a dirty crib.

Jesse was attempting to get a job as an automechanic but was required to pass a urine test. On theday of the incident, Jesse took Patty and [D.P.] to pickup Ray, the 5 year old nephew of a friend. Jesse wantedRay to provide a urine sample for him. Ray refused. While Patty took Ray upstairs to his home, Jesse remainedin the car with [D.P.]. When [D.P.] woke up, Jesse putthe pacifier in his mouth but he spit it out and began tocry. Jesse stated that tension had built up becausePatty always wanted to go with him with the baby and 'aman just needs some peace of mind.' Jesse stated hewanted some relief and the only solution was to grab thebaby and quiet him down. Jesse said he reached over theback seat with one hand and grabbed, yanked [D.P.] upquickly by his pajamas and pulled him into the frontseat. The baby was whimpering like he was afraid.

When Patty came down, Jesse gave her the baby. Jesse stated that Patty took too long to come down and hewas upset and 'pissed off' because "a man has things todo for his family." Jesse began yelling at Patty in thecar. When they arrived home, Jesse told Patty to put thebaby down because he knew he was going to hit her. Jessestated that he hit Patty real hard with his open righthand in the left side of her face. Jesse stated thatwhen he went to hit her again, Patty put her hand up toblock her face and then laid back. When he turned aroundPatty picked up the baby and that pissed him off becauseit looked like she was hiding behind the baby. Jessesaid he went to hit Patty again, but his right hand wasgetting sore. Jesse stated that he swung at her facewith his left hand. Jesse stated that he hit the baby inthe side of the head and the baby started crying.

Jesse stated he told Patty 'change my son.' Jessethen told Patty to "make those phone calls" to take careof some family business. Jesse said that he went to'cool off' and when he returned home he looked in on[D.P.] Jesse stated the baby did not look right. Thebaby had turned blue, was not breathing and was dangling. Patty's grandmother performed CPR on [D.P.] until theambulance came. Jesse stated that he told policeofficer's a 'little different story' before because hewanted this to all go away."

Rotkovich testified that Assistant State's Attorney Oppenheimerread the entire statement out loud to respondent. Rotkovichtestified that he, respondent, and Oppenheimer signed each page,making any corrections respondent requested.

Detective Michael Baker testified he was assigned toinvestigate the aggravated battery of a child, D.P. Bakertestified that on May 25, 1999, at approximately 1:30 a.m. heinterviewed Patricia and took her statement. The statementcontained the following information:

"Patricia stated that she is 17 years old and is themother of [D.P.]. Patty stated that she met Jesse abouta year ago at a carnival. They began dating and shebecame pregnant.

Patty stated that a week prior to the incident Jessewas charged with burglary in Indiana. Patty said thatJesse was supposed to get a urine sample to give to anadvocate for a job but that he was worried the samplewould be 'dirty' because of his drug use. Afterattempting to get Ray to provide the sample and failing,Patty said that Jesse was really mad and told her he wasgoing to 'beat her ass' when they got home. Patty statedthat Jesse punched her on the left side of the face inthe car. When Patty took Ray upstairs to his home, Ray'saunt came to get Patty telling her that Jesse was shakingthe baby in the car. Patty took the baby from Jesse andJesse told her he was 'really going to fuck her up.'

Patty stated that when they got home, Jesse put thebaby on the couch and Jesse grabbed her by the hair andpunched her in the left side of the face. Jesse toldPatty to change the baby, which she did. While changingthe baby, Patty said that Jesse slapped the baby reallyhard on the left side of the face and the baby beganscreaming. Patty said Jesse told her to get out of thetrailer and find a phone to call public aid. Patty saidshe left and the police were called."

Baker testified that Assistant State's Attorney Oppenheimerread the entire statement out loud and that Patty signed each pageof the statement.

D.P.'s certified medical records from Christ hospital wereadmitted into evidence. The records provided that when theEmergency Medical System arrived, the child was unconscious andgasping for air. It was observed that D.P. had a severe headinjury, a hemorrhage and contusions. The retinal hemorrhagesobserved in D.P. were co0000000nsistent with shaken baby syndrome. D.P. continues to suffer seizure activity and twitching in hisright eye.

At the close of all the evidence, the trial court found thatrespondent was the perpetrator of the abuse, creating a substantialrisk to the minor. The court found that both Patricia and therespondent had neglected D.P. and subjected him to an injuriousenvironment.

Immediately prior to the dispositional hearing on January 19,2000, respondent's counsel renewed her objections stated before theadjudication hearing of November 18, 1999. Counsel stated that"because he has a fifth amendment right that in the proceedingwhich took place on the last court date was in effect basically aone sided proceeding because we did not want to waive Mr. [C.'s] constitutional right." The court took judicial notice of theobjection. At the dispositional hearing, Craig Gogins testifiedthat he is the assigned DCFS caseworker for the minor D.P. Goginsstated that D.P. was currently placed in a medical facility in verycritical condition. Gogins testified that D.P. has a frontalbilateral subdural hemotoma, has lost sight in both eyes, hasalmost no hearing at all and is still being fed through tubes inhis stomach. Gogins stated that D.P. is very irritable, doesn'tlike to be held and is suffering from a number of physicalchallenges.

Gogins testified that there were no plans to move D.P. fromthis facility. Gogins stated that if there were any plans, theywould probably be to move him to a long-term medical facility thatwould be able to tend to the baby on a 24 hour basis. Goginsstated that while he referred Patty to parental skills training andcounseling, Patty was not attending classes and had not visitedD.P. since October. Gogins stated that respondent was currentlyincarcerated and was engaged in counseling at some point. Goginsbelieved that respondent obtained counseling through his ownefforts because it was very difficult to obtain services at 26thand California. Gogins recommended that D.P. be adjudged a ward ofthe court.

In making its ruling, the trial court stated that, "the minorhaving been found abused, and all statutory prerequisites havingbeen complied with, the court finds that the minor is adjudged award of the court, it being in the best interest and welfare ofminor***It is ordered that the minor shall be placed in the custodyof the DCFS guardianship administrator with the right to place theminor." Respondent now appeals.

II. ANALYSIS

Respondent is appealing from the juvenile court's findings ofabuse and neglect and finding D.P. a ward of the court. On appeal,respondent argues that the juvenile court's refusal to continue theadjudicatory hearing until after his criminal case concluded was anabuse of discretion. Respondent maintains that, by refusing tocontinue the hearing, the court was unconstitutionally forcing himto choose between losing his parental rights or waiving his rightto self incrimination.

Section 2-1007 of the Code of Civil Procedure covers requestsfor continuances. 735 ILCS 5/2-1007 (West 1998). It provides that:"On good cause shown, in the discretion of the court and on justterms, additional time may be granted for the doing of any act orthe taking of any step or proceeding prior to judgment." 735 ILCS5/2-1007 (West 1998). There is no absolute right to a continuance. Village of Maywood v. Barrett, 211 Ill. App. 3d 775, 570 N.E.2d 645(1991). It is within the juvenile court's discretion whether togrant or deny a motion for a continuance. In re K.S., 203 Ill. App.3d 586, 596, 560 N.E.2d 1380 (1990); In re C.L.T., 302 Ill. App. 3d770, 779, 706 N.E.2d 123 (1999). Furthermore, the denial of arequest for continuance will not be grounds for reversal unless thecomplaining party has been prejudiced by such denial. In re M.R.,305 Ill. App. 3d 1083, 1086, 713 N.E.2d 1241 (1999).

The fifth amendment to the United States Constitution providesthat no person "shall be compelled in any criminal case to be awitness against himself." U.S. Const., amend. V. The fifthamendment permits a person to refuse to testify against himselfduring the criminal trial in which he is a defendant and allows himto refuse to answer questions put to him in any other civil orcriminal proceedings, "where the answers might tend to incriminateher in future criminal proceedings." In re L.F., 306 Ill. App. 3d 748, 753 714 N.E.2d 1077 (1999). "This provision of the fifthamendment applies to the states through the fourteenth amendment." In re L.F., 306 Ill. App. 3d 748, 753, 714 N.E.2d 1077 (1999), citing to Allen v. Illinois, 478 U.S. 364, 106 S. Ct. 2988, 92 L.Ed. 2d 296.

Respondent is essentially arguing that his fifth amendmentrights were violated in this case because he was prevented fromtestifying at the juvenile proceeding because he had a criminalcase pending. We disagree. As support for his position,respondent relies on the decision in In re L.F., 306 Ill. App. 3d748, 714 N.E.2d 1077 (1999). In In re L.F., the trial court gavetemporary custody of respondent's children to DCFS and subsequentlychanged the permanency goal from "return home" to "substitute carepending termination of parental rights" following the death of anonbiological foster child, D.M., who was in respondent's care. Respondent argued that her fifth amendment right against self-incrimination was violated when the trial court changed thepermanency goal because she would not comply with DCFS'srequirement that she admit that she was responsible for D.M.'sdeath. The appellate court noted that this was a case of firstimpression in Illinois. After looking to other states forguidance, the court recognized that there was a very fine, butimportant, distinction between taking steps to terminate parentalrights based specifically on a refusal to waive a right againstself-incrimination and doing so based upon a parent's failure tocomply with an order for meaningful therapy. The cases that thecourt examined from other jurisdictions found that "it isconstitutionally impermissible to order a parent to choose betweenlosing her parental rights or waiving her right to self-incrimination." In re L.F., 306 Ill. App. 3d at 753; see In reClifford M., 6 Neb. App. 754, 577 N.W.2d 547 (1998); Mullin v.Phelps, 162 Vt. 250, 647 A.2d 714 (1994); In re Welfare of J.G.W.,433 N.W.2d 885 (Minn. 1989); In re Welfare of J.W., 415 N.W.2d 879(Minn. 1987).

In applying those holdings, the court in In re L.F. statedthat the record showed that the respondent was being asked to admitto a crime. "The DCFS goal in question read, 'Mrs. [F] willacknowledge responsibility for the maltreatment of the child in hercare.'" In re L.F., 306 Ill. App. 3d at 754. The court reasonedthat the trial court had deemed insufficient respondent's admissionthat she was responsible for the death of D.M. because his safetywas entrusted to her: therefore, the only other admission thatwould be held satisfactory would be a full admission of herinvolvement in the crime. "That admission could be used againsther in a subsequent criminal proceeding." In re L.F., 306 Ill.App. 3d at 754. The court held that the trial court violated therespondent's right against self-incrimination. The court furthernoted that the reasoning employed in the case applied to bothpermanency review hearings as well as termination of parentalrights hearings. In re L.F., 306 Ill. App. 3d at 753-54.

The case at bar is directly distinguishable. Respondent hasfailed to demonstrate sufficient facts to establish aconstitutional violation. First, respondent does not point to anyinstance during his adjudication hearing where he was required toadmit guilt. The record demonstrates that respondent was notcompelled to incriminate himself during the proceeding. In In reL.F., the respondent was told that unless she admitted to killingthe foster child in her care, she would not get custody of herchildren. Here, no one ever suggested that respondent repeat hisconfession to the juvenile court. Respondent's argument that hemight hypothetically have been compelled to incriminate himself ifhe had chosen to take the stand is unconvincing. As the court inPeople v. Becker, 315 Ill. App. 3d 980, 1000, 734 N.E.2d 987(2000), noted, "[t]he standard for application of the fifthamendment privilege has been whether the person claiming it isconfronted by substantial and real, not merely trifling orimaginary, hazards of incrimination." Respondent is speculatingthat, had he taken the stand, statements would be generated thatmight possibly be used to incriminate him in a subsequent criminalproceeding. "Such speculation cannot support a claim of standingor establish violation of the privilege against compulsory self-incrimination." People v. Becker, 315 Ill. App. 3d at 1001.

Second, the respondent was not prevented from testifying atthe juvenile proceeding in any way. As respondent's reply briefaccurately states, respondent's decision not to testify was purelya matter of strategy. It is not an abuse of discretion for trialcourts to refuse to stay civil proceedings because one of theparities has chosen to employ a certain strategy in a pendingcriminal case. As in cases in which a trial court has made aninitial ruling that a defendant's prior convictions are admissiblefor potential impeachment if defendant takes the stand, thedecision to testify is still ultimately in the defendant'sdiscretion. Criminal courts have held that where a trial court'sruling on the admissibility of defendant's prior convictions wasproper, defendant's decision not to testify does not implicatedefendant's fifth amendment rights but remains a matter of trialstrategy. People v. Leonard, 83 Ill. 2d 411, 423, 415 N.E.2d 358(1980); People v. Johnson, 97 Ill. App. 3d 1055, 1069, 423 N.E.2d1206 (1981).

Respondent's citation to the cases discussed by the court inIn re L.F., 306 Ill. App. 3d 748, 714 N.E.2d 1077, offers noadditional support for his argument. As the State correctlyasserts, those cases involved situations where the respondents wererequired to make admissions of abuse in order to retain parentalrights. See In re Clifford M., 6 Neb. App 754, 577 N.W.2d 547;Mullin v. Phelps, 162 Vt. 250, 647 A.2d 714; In re Welfare ofJ.G.W., 433 N.W.2d 885; In re Welfare of J.W., 415 N.W.2d 879. Forexample, In re Welfare of J.W., after removing J.W. and A.W. fromtheir parents' care, the trial court ordered a treatment plan whererespondents were required to explain to a psychologist the death oftheir two-year-old nephew who was in their care. The orderprovided that J.W. and A.W. remain in foster care until the parentscompleted the treatment plan. In holding that the order violatedthe parents' fifth amendment rights, the court noted "when a statecompels testimony by threatening to inflict potent sanctions unlessthe constitutional privilege is surrendered, that testimony isobtained in violation of the fifth amendment." In re Welfare ofJ.W., 415 N.W.2d at 882, citing Lefkowitz v. Cunningham, 431 U.S.801, 805, 97 S. Ct. 2132, 53 L. Ed. 2d 17 (1977). The courtfurther noted that the threat must be real and imminent. In reWelfare of J.W., 415 N.W.2d at 882. As we have previouslydiscussed, the respondent in this case was not threatened withtermination of his parental rights if he did not admit his guilt ofthe abuse of D.P.

Furthermore, the trial court did not abuse its discretion inrefusing to continue the case where the continuance would result inan unreasonable delay. There is an overwhelming governmentinterest in expediting these adjudicatory proceedings to "act in ajust and speedy manner to determine the best interests of theminor, including providing for the safety of the minor." 705 ILCS405/2-14(a) (West 1998). When evaluating whether due processrequires a trial court to continue the proceedings in a parentalrights termination case, a reviewing court may consider thegovernmental interests affected by a delay in the proceedings. Inre M.R., 316 Ill. App. 3d 399, 402, 736 N.E.2d 167 (2000). In thistype of proceeding, a delay imposes a serious cost on the functionof government, as well as intangible costs to the lives of thechildren involved. In re M.R., 316 Ill. App. 3d at 403. "Theseconsiderations are so important that, even if her or his absencefrom the hearing is involuntary, a parent's right to due process isnot violated when the conditions preventing the parent's presenceare likely to continue indefinitely." In re J.P., 316 Ill. App. 3d652, 661, 737 N.E.2d 364 (2000).

Our supreme court recently addressed how important it is forjuvenile courts to have the powers necessary to act in anexpeditious manner. In In re D.S., No. 88460 (June 21, 2001), theyheld:

"In instances where, as here, reunification between aminor and her family is delayed or fails, section 1-2(1)of the Act directs the circuit court to select 'the bestavailable placement to provide permanency for the child.'705 ILCS 405/1-2(1) (West 1998). Indeed, the provisionsof the Juvenile Court Act would be rendered meaninglessand the functions of the juvenile court would benullified if the court were powerless to effectuate thepermanency goal it found to be in a minor's bestinterests. A clear example is provided by the matter atbar: if the circuit court does not have the statutoryduty and authority to effectuate the permanency goalfound to be in the best interests of D.S., it isconceivable that the future status of D.S. could remainin limbo until the time, if ever, the State decides toprosecute the termination petition. As we have recentlyobserved in In re D.L., [191 Ill. 2d 1, 13, 727 N.E.2d990 (2000),] because 'it is not in [a minor's] bestinterests for his status to remain in limbo for anextended period of time,' the circuit court should'consider, in an expedited manner, cases involving [suchchildren], so that the minors whose futures are at stakein [juvenile] proceedings can obtain a prompt, just, andfinal resolution of their status.'" In re D.S., slip op.at 15-16.

While not binding upon this court, the decision in Wirtz v.Wirtz, No. 99-CA-57 (Ohio App. 7th Dist. 2000), is instructive onthis point. In Wirtz, Debbie Wirtz filed a petition for a civilprotection order in the domestic relations divisions of the trialcourt. The petition alleged that her husband, Jerry Wirtz,attempted to hit her with his van. A hearing on the petition washeld in which Debbie testified and was cross-examined. At theclose of her case, Jerry orally moved for a continuance pending theresolution of criminal domestic violence charges against himarising from the same occurrence. The magistrate denied the motionstating that a delay for the reasons proffered by Jerry would beunreasonable because the criminal matter could proceed for severalmonths. The appellate court affirmed the magistrate's denial. Thecourt noted that a major matter for a trial court to consider isthe length of the continuance and whether it would be reasonable. The court stated that the relevant statute in that case clearlycontemplated limited durations for civil protection orders. "Permitting [Jerry] to delay a full hearing could well tread uponthe limitations imposed by statute." Wirtz v. Wirtz, slip op at_____. Based upon the unreasonableness of the delay, the courtheld that the trial court did not abuse its discretion in denyingthe motion.

In the case at bar, the trial court denied respondent'smotion, specifically finding that granting the continuance wouldresult in an unreasonable delay. This case was filed on June 15,1999. When respondent originally requested a continuance in thiscase on August 26, 1999, the court stated that the "best interestof the child requires that we hold this (within) 90 days." Thecourt noted that it had already continued the case beyond 90 daysin order to obtain necessary records. The court went on to statethat it would not "under any circumstances continue the case untilafter the criminal case." The court again stated on November 17ththat "criminal cases can go on for two years***I will not grant acontinuance for that reason." The trial judge heard defensecounsel's arguments regarding the basis for continuing the hearing,gave it proper consideration, and denied it. In doing so the courtproperly considered the likely length of delay that would berequired. The trial court properly indicated its concerns with adelay that could last years. In light of the fact that "[i]nmaking decisions affecting the lives of young children, we must useextreme caution to protect their best interests in every waypossible," the trial court did not abuse its discretion in findingthe potential delay unreasonable. In re C.M.J., 278 Ill. App. 3d885, 892, 663 N.E.2d 498 (1996).

We also note that where a defendant in a criminal case wishesto proceed on that criminal case prior to proceeding in acontemporaneously pending noncriminal proceeding, that defendanthas a right to demand a speedy trial in his criminal case and hemust receive that trial within 120 days of the demand if he is incustody or 160 days if he is not in custody. 725 ILCS 5/103-5(a),(b) (West 2000). Here, the defendant chose not to make anysuch demand. The parties agree that at the time of oral argumentin this case (October 4, 2001), the criminal case was still pendingand pretrial motions had not yet been heard.

Therefore, we hold that while the pendency of a criminal casemay be considered by a juvenile court in ruling on a motion forcontinuance, it is still within the court's discretion to grant ordeny a continuance. 735 ILCS 5/2-1007 (West 1998). The pendencyof a criminal case does not, by itself, outweigh the factors that support proceeding in the juvenile case.

Accordingly, for the foregoing reasons, we affirm the decisionof the trial court in denying respondent's request for acontinuance.

Affirmed.

GREIMAN and REID, JJ., concur.