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SIXTH DIVISION
February 2, 2001

Defendant Marina Moreno appeals the denial of her motion to bar prosecution and dismiss the criminal charges againsther. 145 Ill. 2d R. 604(f). On appeal, defendant contends the State is collaterally estopped from criminally prosecuting herfor aggravated battery of a child because every contested factual issue to be tried in the criminal case was resolved in herfavor in a prior juvenile court proceeding. We affirm.

Defendant is the mother of four minors named in separate juvenile wardship petitions. The petition alleged that the minors,ranging in age from two to eight years, were subject to a substantial risk of physical injury and thus, abused, solely becauseof an injury sustained by their seven-month-old cousin, G.M., while in defendant's care. While the juvenile petitions werepending, the State filed criminal charges against defendant, alleging that she committed aggravated battery of a child uponG.M.

At the juvenile adjudicatory hearing, defendant testified that she was G.M.'s maternal aunt, and that since he was six weeksold, she had been caring for him daily while her sister worked. On the morning of September 10, 1997, she fed G.M. whilehe was seated, but unbuckled, in his car seat on the kitchen table. She then started dressing her two-year-old so they couldpick up her four-year-old from his prekindergarten class. While defendant was tying the two-year-old's shoes, she sawG.M.'s feet dangling from the car seat and tried to get to him. Before she could do so, G.M. toppled head-first out of theseat and onto the floor three feet below. When she picked him up, she saw a circular red spot on his forehead.

Defendant took G.M. into the bedroom. She noticed that his eyes rolled upwards, his extremities stiffened, and he madesome vocal noises. Defendant also noticed that his lips lost color, but she was able to reverse that by applying lightpressure on his heart.

Defendant called her sister and then dialed 911. When defendant went outside to meet the paramedics, G.M. vomitedtwice. Defendant then accompanied G.M. to the hospital, where she informed medical personnel of the occurrence andstayed with the baby's parents until G.M. was released.

About 11 p.m. defendant's sister called from another hospital, Children's Memorial Hospital, informing her that G.M. had afractured skull, cerebral edema, and a subdural hematoma. Defendant joined her sister at the hospital, but was neverinterviewed by social workers there regarding how the injury occurred.

G.M.'s mother testified that G.M. was fine when she dropped him off at defendant's home on the day in question. Twomonths after the incident, she had no reason to believe that defendant had abused him.

The State's expert witness testified that she was a pediatric radiologist and a member of the protective services team atChildren's Memorial Hospital (CMH). The juvenile court qualified her as an expert in child abuse and shaken babysyndrome. The State's expert testified that a social worker came to her with this case and that she read the CT scan doneon G.M. She observed an interhemispheric subdural hematoma and a subdural hematoma on the right side and righthemisphere which, she testified, are symptoms of shaken baby syndrome. She claimed that she had not seeninterhemispheric subdural hematomas from even high falls, but had seen it in an automobile accident case where the babyreceived a whiplash injury as a result of the car rolling at very high speed.

The State's expert further testified that she reviewed the four skull X rays taken of G.M. and found no evidence of fracturesto his skull as had been initially reported by the resident physician and that G.M.'s bone scan was normal, but he hadbilateral retinal hemorrhages. She told the team social worker that the findings on the CT scan were not consistent with thehistory given and that in her opinion the injuries sustained were not accidental and could not have been caused by the falldescribed.

During cross-examination, the State's expert acknowledged that she had not examined G.M. She also testified that she hadnot spoken to defendant, but did speak to G.M.'s mother in the MRI unit. She acknowledged that she had not seen evidenceof the bilateral retinal hemorrhages reported by an ophthalmologist whose level of training was unknown to her. She reliedon the chart as confirmation of the "attending." She also acknowledged that she did not see any associated skeletal injuriesand agreed that retinal hemorrhages can occur from accidental or noninflicted causes. She indicated that theophthalmologist noted that G.M. had an occipital skull fracture, which he had taken from the chart, and that there wasretinal hemorrhaging. She testified that the ophthalmologist knew nothing about occipital injuries and was wrong inreporting it. Nevertheless, the State's expert opined that the force necessary to cause the right interhemispheric subduralhematoma sustained by G.M. could not have been generated by the weight of the infant falling down on the floor even if hewas in a car seat.

The State rested its case in chief after publishing sections of the medical reports that had been received into evidence. Defendant's motion for a directed finding was denied by the court and her counsel published additional excerpts from themedical reports.

The court then interviewed defendant's eight-year-old son in chambers and gave a synopsis of their conversation for therecord. The boy told the juvenile court that his mother never hurt him or his siblings and that he wanted to know why hecould not live with his parents.

On the following court date, the juvenile court heard testimony from a child welfare specialist who had been assigned bythe court and the Department of Children and Family Services to provide an evaluation of defendant's family. Sheconcluded the family was loving, found no evidence of abuse to any of the minors, believed they had never been abused bytheir parents, and believed they were not at any risk of abuse or neglect. Additionally, two teachers at the school attendedby defendant's three oldest children testified that they had never observed any evidence of abuse or neglect by defendantand that they found the children to be well-adjusted children of a good mother, who were not at risk of injury in their homeenvironment.

Dr. David Frim testified that he was a pediatric neurosurgeon and assistant professor of surgery and neurosurgery in thebiological sciences division of the University of Chicago. He reviewed G.M.'s medical records from CMH and ascertainedfrom the report of the ophthalmological examination done by Dr. Eagle that he was a doctor-in-training as opposed to anattending physician. That report noted bilateral retinal hemorrhaging and occipital skull fracture.

Dr. Frim examined G.M. on October 21, 1997, and found no evidence of a fracture or retinal hemorrhaging. He noted thatthe report prepared by the attending ophthalmologist at CMH a few days after the incident indicated that the child hadscattered retinal hemorrhages only on one side. Dr. Frim found this significant since the diagnosis of shaken babysyndrome had been based in large measure on bilateral retinal hemorrhages and occipital skull fracture which were notborne out in these observations. Dr. Frim stated that interhemispheric subdural hematoma may result from a blow to thehead, nonaccidental trauma, or when a baby is shaken; however, he did not believe that the presence of such a hematomacould alone support a finding of shaken baby syndrome since he has seen that occur in many accidental injury cases.

Dr. Frim also testified that his reading of the CT scan and MRI led him to believe that G.M. had a frontal subduralhematoma under the area on the bruised forehead which extended around the corner of the space in between the twohemispheres. In his opinion, the injuries observed in these scans were consistent with a fall, "a single blow to the head ontoa hard surface."

During cross-examination, he testified that he could not rule out any mechanism of injury regarding a solitary blow to thehead; but on redirect examination, Dr. Frim stated that there was nothing in the record to lead him to believe that this injurywas not accidental.

At the close of evidence and argument, the juvenile court found that the State failed to show by a preponderance of theevidence that the injuries sustained by G.M. in defendant's care were other than accidental, stating, "[I]t's clear to me basedon all the evidence and all the evidence, including the way the mother testified as well as the way [defendant] testified, thatthe injuries were nothing but accidental." The court also found that the evidence failed to establish that defendant's fourchildren were abused due to substantial risk of physical injury in the home and accordingly dismissed the State's petitions.

The State appealed, and defendant filed a motion to collaterally estop her criminal prosecution based on the juvenile court'sfindings at the adjudicatory hearing. Because the State's appeal was pending, the trial court denied defendant's motion asuntimely. We then affirmed on appeal from the juvenile court proceeding, concluding that the juvenile court's decision thatthe State had not met its burden of proving that G.M.'s injury was other than accidental was not against the manifest weightof the evidence. In re P.M., No. 1-98-0483 (1998) (unpublished order under Supreme Court Rule 23).

Defendant thereafter filed a new motion to bar prosecution and dismiss the criminal information with prejudice on thegrounds of collateral estoppel and double jeopardy. After a hearing, the trial court denied the motion, determining that theprior adjudication was not based on all the evidence that the State could have presented and would present in a criminalprosecution, and therefore the State had not been provided a full and fair opportunity to present all its evidence. Citing toPeople v. Percifull, 9 Cal. App. 4th 1457, 12 Cal. Rptr. 2d 331 (1992), the trial court reasoned that no consideration was ascompelling as the public's right to have criminal culpability separately and fully assessed in a trial, even if the result of thetrial may ultimately be inconsistent with the conclusion of the juvenile court following the adjudicatory hearing.

In this appeal, defendant contends that the State is collaterally estopped from prosecuting her because every contestedfactual issue in the case was explicitly resolved in her favor at the juvenile court proceeding. She argues that traditionalprinciples of collateral estoppel apply to her case and that no other policy considerations prevent the doctrine's application.

Collateral estoppel bars a party from relitigating an issue decided in a prior proceeding. The doctrine is applicable whenthe issue decided in the prior proceeding is identical with the one presented in the suit in question, there was a finaljudgment on the merits in the prior proceeding, and the party against whom estoppel is asserted was a party or in privitywith a party to the prior adjudication. People v. Pawlaczyk, 189 Ill. 2d 177, 189 (2000). Additionally, the party againstwhom estoppel is asserted must previously have had a full and fair opportunity to litigate the issue and must suffer nounfairness as a result of the doctrine's application. Pawlaczyk, 189 Ill. 2d at 189. Application of collateral estoppel mustbe determined on a case-by-case basis and only when equity requires. Talarico v. Dunlap, 177 Ill. 2d 185, 200 (1997).

Although defendant cites no Illinois case holding that dismissal of a petition for adjudication of wardship collaterally estopssubsequent criminal proceedings, defendant analogizes to another Illinois case which held that the dismissal of a civilaction barred subsequent criminal proceedings. See People v. Buonavolanto, 238 Ill. App. 3d 665 (1992) (ruling fordefendant in civil forfeiture action estopped State from bringing criminal action based upon same issue of whetherdefendant's car was used to facilitate unlawful delivery of controlled substance). Defendant also cites to Bowling v. State,298 Md. 396, 470 A.2d 797 (1984), where Maryland's high court held that the State was collaterally estopped fromprosecuting the defendant on charges of sexual assault of his daughter. There, the trial court had dismissed a prior civilproceeding on a petition to determine whether the daughter was a child in need of assistance on the ground that the Statehad failed to prove by a preponderance of the evidence that the defendant had committed the alleged acts. Bowling, 298Md. at 398, 470 A.2d at 798.

The State acknowledges that no Illinois court has addressed the question of whether a factual finding in a juvenile abuseand neglect proceeding collaterally estops a subsequent criminal proceeding. However, the State cites to five cases fromother jurisdictions where the courts concluded that collateral estoppel does not preclude criminal prosecution in this type ofsituation. See People v. Percifull, 9 Cal. App. 4th 1457, 12 Cal. Rptr. 2d 331 (1992); State v. Cleveland, 58 Wash. App.634, 794 P.2d 546 (1990); People v. Gates, 434 Mich. 146, 452 N.W.2d 627 ( 1990); Gregory v. Commonwealth, 610S.W.2d 598 (Ky. 1980); State v. Felter, No. H-99-001 (Ohio App. September 17, 1999). Percifull and Cleveland arepersuasive.

In Percifull, the California appellate court accepted that the threshold requirements of collateral estoppel had beenestablished where a juvenile court concluded that the State had not proved allegations in a dependency petition that theparents had injured their child or allowed him to be injured, and the parents then moved to dismiss felony child abuse andendangerment charges against them arising out of the same facts. Percifull, 9 Cal. App. 4th at 1459, 12 Cal. Rptr. 2d at331-32. Nonetheless, the court determined that policy considerations required that prosecution be allowed. The courtnoted in particular the importance of preserving the criminal trial process as the exclusive forum for determining guilt orinnocence, and the ability of a trial, as opposed to a dependency proceeding, to vindicate society's insistence that everycitizen obey the penal laws. Percifull, 9 Cal. App. 4th at 1460, 12 Cal. Rptr. 2d at 333-34.

In Cleveland, the Washington appellate court addressed the trial court's finding that the State had not shown by apreponderance of the evidence that sexual abuse alleged in a petition for dependency had occurred, and defendant thereaftermoved for dismissal of criminal charges of statutory rape and indecent liberties, asserting that the criminal charges werebased on allegations of sexual abuse arising from the same facts. Cleveland, 58 Wash. App. at 636, 794 P.2d at 547. Theappellate court found that collateral estoppel could not be applied because of public policy. Cleveland, 58 Wash. App. at643, 794 P.2d at 551. The court explained that because dependency proceedings are often attended with a sense of urgency,are held as promptly as reasonably possible, and are narrowly focused on the welfare of the child, the State neither needsnor performs the extensive preparation typically required for felony trials. Cleveland, 58 Wash. App. at 643, 794 P.2d at551. The appellate court also considered that more resources are used in developing a felony prosecution than in adependency hearing, dependency is not decided by a jury, and if faced with the application of collateral estoppel, the Statemay become reluctant to conduct dependency proceedings in cases where one or more of the same issues would arise insubsequent criminal prosecutions. Cleveland, 58 Wash. App. at 644, 794 P.2d at 551.

More importantly, in People v. Wouk, 317 Ill. App. 3d 33, 739 N.E.2d 64 (2000), another division of this court addressedwhether order of protection proceedings collaterally estopped the State in a subsequent criminal proceeding. The courtconcluded they did not.

In Wouk, the court noted that "'collateral estoppel must not be applied to preclude parties from presenting their claims ordefenses unless it is clear that no unfairness results to the party being estopped.'" Wouk, 317 Ill. App. 3d at 39, 739 N. E.2d at 69, quoting Talarico, 177 Ill. 2d at 191-92. The Wouk court also quoted section 28 of the Restatement (Second) ofJudgments:

"'Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential tothe judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the followingcircumstances:

* * *

(5) There is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact ofthe determination on the public interest or the interests of persons not themselves parties in the initial action ***.'" Wouk,317 Ill. App. 3d at 40, 739 N. E. 2d at 69-70, quoting Restatement (Second) of Judgments