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No. 2--02--0861

JUSTICE McLAREN delivered the opinion of the court:

Respondent, Kevin S., appeals from the trial court'sadjudication of neglect and the dispositional order in the neglectproceedings regarding his daughter, K.S. We reverse.

On January 16, 2002, the State filed a three-count petitionfor adjudication of wardship and temporary custody of K.S. CountsI and II, alleging neglect and abuse, respectively, related toK.S.'s mother, Valerie C., and her alleged role in the murder ofK.S.'s sibling, Baby Boy C., on January 13. Count III alleged thatK.S. was an abused minor in that respondent, the paramour of K.S.'smother, committed a sex offense against T.V., another sibling ofK.S., by attempting to place T.V.'s hand on his penis. The trialcourt found an immediate and urgent necessity to remove K.S. fromthe home and place her in a shelter care facility and grantedtemporary guardianship to the Department of Children and FamilyServices (DCFS).

On April 11, the State withdrew counts I, II, and III andfiled an additional count IV, alleging that K.S. was neglected inthat her mother failed to protect her by failing to follow thesafety plan of DCFS. Valerie C. stipulated to a factual basis forcount IV and that the evidence would prove that K.S. was neglected. The State represented that, if called, DCFS caseworker EvelynMartinez would testify that she was involved in the investigationof the alleged sexual abuse of T.V. On June 12, 2000, shediscussed the safety plan with Valerie and told her that respondentcould not have contact with any of her children and could not livein their house. On October 25, 2000, she told Valerie that she wasgoing to recommend that the case be indicated and reiterated thatthe safety plan was still in effect. Some time after that,Martinez learned that respondent had been living in the house withValerie and her children. The court was also told that thecriminal case against respondent, which arose from the allegationthat he had sexually molested T.V., had been dismissed in January2000.

The court found K.S. neglected based upon "the factual basisas presented and agreed upon by Ms. Hayward [Valerie's attorney]and her client and the State." The court then ordered a socialhistory investigation and ordered respondent to undergo a sexualoffender's evaluation. Respondent, through his counsel, stated asfollows:

"Just so it is clear on the record, my client is notadmitting or stipulating to anything. My client's criminalcase was dismissed. In talking with my client[,] I don't feelas his advocate that that sex offender evaluation is necessarybecause that charge was dismissed, and he has adamantly deniedit from day one.

I want the record to show that he doesn't want the childto be adjudicated neglected, and that the criminal case hasalready been disposed of. He was already incarcerated forthat. The case was dismissed. And we don't feel that it isappropriate."

The trial court responded that respondent "absolutely can persistin his denial, but the evaluation is going to be ordered. *** I amgoing to order that you follow through with that because I have tomake sure that [K.S.] is safe."

On June 28, 2002, the case proceeded to a dispositionalhearing. The social history investigation, prepared by CatholicCharities, stated that DCFS had become involved with the familywhen T.V. and her cousin reported that respondent "had fondled themand sexually molested them." However, the case was closed whenValerie "agreed to a safety plan, and reported that she would notallow any contact between her children" and respondent. Accordingto the report, respondent stated that "the girls lied about theincidents," and he "has denied any responsibility for the sexualmolestation report that was indicated by DCFS in 2000." CatholicCharities concluded that such denial "may indicate that[respondent] does not fully understand the children's needs" andfurther characterized respondent as "in denial about hisresponsibility" in the DCFS case. Respondent was "reluctant tocomply with services" regarding the sexual molestation charge. Thereport did note that respondent's only criminal conviction was ofdeceptive practices. However, the report concluded that respondent"needs to acknowledge his role in the previous DCFS allegation ofsexual molestation, which was indicated. He needs to complete asexual offenders assessment, and follow all recommendations of theassessment." At the dispositional hearing, respondent continued todeny any wrongdoing and asked that he not be ordered to completesexual offender assessment and counseling.

The trial court found K.S. to be a neglected minor, made hera ward of the court, and gave legal guardianship to DCFS. Addressing respondent, the court stated:

"Okay. Here is the situation, and just so youunderstand, Mr. [S.], I have to look at what is in the bestinterest of the children.

The issue is not whether the criminal case was dismissedor not. I have no idea why it was dismissed. I have no doubtthat it was. I don't even know if it was the same complainingwitness. But the issue now is that one of the children saysthat you sexually molested her. That may not be true. Allthe more reason to follow through with this evaluation and seewhat they say. They will be reviewing the reports. They willbe reviewing the statement to see if there was a recantation,whatever the situation is. I don't know from what I can seehere. But what I can tell you, there is a founded report. There was a statement made by one of the girls. And that youare the father of a young girl, and that I have to make surethat she is protected. So I am going to order the sexualoffender evaluation within the next 30 days."

Respondent filed a motion to reconsider, which was denied bythe trial court. This appeal followed.

Respondent first contends that the trial court erred inordering him to complete a sexual offender evaluation and followthe resulting recommendations. The conditions of a dispositionalorder must have some basis in the evidence. In re Chyna B., 331Ill. App. 3d 591, 597-98 (2002). On review, a trial court'sdispositional determination will be reversed only if the court'sfindings of fact are against the manifest weight of the evidence orif the court committed an abuse of discretion by selecting aninappropriate dispositional order. In re J.P., 331 Ill. App. 3d220, 238 (2002).

The complete lack of evidence against respondent in this caseleads us to conclude that the trial court's dispositional order wasboth an abuse of discretion and against the manifest weight of theevidence. The court heard nothing except rank tertiary hearsayregarding the allegations of a sexual offense committed byrespondent. At the time that the court found count IV to beproved, it had heard nothing except what Valerie stipulated thatDCFS caseworker Martinez would testify to if she were called totestify. In that stipulation, it was stated that Martinez wouldtestify that she was involved in an investigation of the allegationthat respondent molested T.V. and that DCFS's "safety plan"prohibited respondent's presence in Valerie's house. It was theviolation of this safety plan that formed the basis of the court'sfinding of neglect. However, the court also heard that thecriminal case against respondent, which arose from the sameallegations of sexual molestation, was dismissed, as was count IIIof the petition in this case, which was based on the sameallegations. The Catholic Charities report included the statementthat the DCFS report regarding the molestation allegations was"indicated." However, respondent consistently denied theallegations, and the Catholic Charities report noted this fact.

The trial court never heard any direct evidence thatrespondent had committed any sexual offense; the evidence was onlya stipulation by a third party, the mother, and a report about areport containing such allegations. While the DCFS report was"indicated," such a designation means only that "credible evidence"of abuse or neglect has been found by DCFS. See S.W. v. Departmentof Children & Family Services, 276 Ill. App. 3d 672, 674 (1995). On the other hand, the court knew that the State had dismissed thecriminal charges against respondent and withdrawn the abuseallegations based on that same incident, and that respondent hadalways denied the allegations. At an adjudicatory hearing, theState must prove allegations of neglect by a preponderance of theevidence. In re S.S., 313 Ill. App. 3d 121, 126 (2000). Referenceto a DCFS report of "credible evidence" was an insufficient basisfor ordering respondent to undergo a sexual offender evaluation. "Credible evidence" is a term of art; labeling evidence as crediblein no way denotes that the evidence comports with rules of evidenceor procedural due process. The dissent accords this "credibleevidence" too much gravity. A finding by a DCFS worker, as capableas the worker may be, does not obviate the need for the State toprosecute an alleged offense and a judge to find that an offensewas committed.

The trial court in this case abdicated its role as factfinder, as is evidenced by its explanation of its order torespondent:

"The issue is not whether the criminal case was dismissedor not. I have no idea why it was dismissed. I have no doubtthat it was. I don't even know if it was the same complainingwitness. But the issue now is that one of the children saysthat you sexually molested her. That may not be true. Allthe more reason to follow through with this evaluation and seewhat they say." (Emphases added.)

The State attempts to bolster that explanation with the followingargument:

"Arguably, in the instant matter, the trial court assumedthat the Respondent was a sex offender who posed harm to K.S.because without a related evaluation, it had no other courseof action consistent with the best interests of K.S." (Emphasis added.)

We note that if count III had not been withdrawn, anadjudicatory hearing would have been a proper and acceptable courseof action to determine if respondent was a sex offender. Be thatas it may, trial courts are to base decisions on evidence, notassumptions. The absence of evidence is not "[a]ll the morereason" to order a parent to submit to a sexual offender evaluationand possible counseling. Respondent was never given a hearing atwhich witnesses testified, with the opportunity to cross-examinewitnesses and present his own evidence. The State foreclosed thispossibility when it dismissed the criminal charges and withdrew the abuse allegations against respondent in count III. Instead,the court ordered the evaluation without any evidence closer thanthird-hand reports, and it relied on the sexual offender evaluationto prove whether respondent was guilty of the claimed sexualoffenses. In addition to the trial court's error of ordering theevaluation at all, we must point out the fallacy of the court'sreasoning. We are unaware of any authority that has determined,pursuant to Frye, that such an evaluation may be so utilized. SeeFrye v. United States, 293 F. 1013 (D.C. Cir. 1923). Completion ofthe evaluation would not establish whether respondent sexuallymolested T.V. Respondent denied the allegation. In the absence ofan admission or stipulation by respondent, only an evidentiaryhearing could determine that respondent committed such an offense.If this court were to allow the trial court to order such anevaluation without the benefit of evidence, one shudders toconsider what other mischief could occur if uncharged,unsubstantiated, and unproved allegations are mistaken for evidenceat either the adjudicatory or the dispositional stage of theproceedings, especially when the party condemned demands a hearingon the merits and is denied that opportunity. The dissent findsthis "demeaning" and sees the trial court's actions as nothing"other than trying to reach the right result in this case." Slipop. at 41-42. This opinion is not an ad hominem attack on thetrial court; however, we do find both error and mischief in theviolation of due process rights to confront witnesses and torequire proof by at least a preponderance of the evidence, evenwhen it is done to "protect children." If these rights can besacrificed in such an instance, all other constitutional rightsmust also be vulnerable.

The dissent reveals the crux of the matter when it describesthis case as "gut wrenching" because of the "possible sex abuse"involved. See slip op. at 42. "Possible" sex abuse, though notalleged in the neglect petition; "possible" sex abuse, though notproved, either through a criminal trial or an adjudicatory hearing;"possible" sex abuse raised only through tertiary hearsay. "Possible" does not rise to the level of proof necessary to ordera man to undergo an evaluation and possible counseling for sexualabuse. Such an order based on "possible" acts is patent error. Asthis court noted in an appeal by one parent from an adjudication ofneglect:

"We are dealing here with the future and only possibilitiesand probabilities can be assessed. To expose respondent'schildren to a reasonable probability of abuse is somethingthis court will not do. On the other hand, no child in anyfamily is free from the possibility of future abuse and wecannot afford to sever the natural ties between parent andchild and cause that loss to both of them on the merepossibility that the child may be abused." (Emphasis inoriginal.) In re Baby Boy Butt, 76 Ill. App. 3d 587, 594(1979).

The potential for further mischief can be found in thedissent's interpretation and application of section 2--21(2) of theJuvenile Court Act of 1987 (Act) (705 ILCS 405/2--21(2) (West2000)). The dissent argues that the "broad scope" of section 2--21(2) gave the trial court discretionary power to "order aninvestigation into the alleged sex abuse." Slip op. at 35. Apparently, the dissent sees no limit to the size of the net thetrial court may cast to find information, as it would allowunreliable, tertiary hearsay to preclude respondent fromdetermining the truth of the charges brought by a nonparty. Thedissent finds this to be a "monumental overstatement," arguing thatthe use of hearsay evidence did not prevent respondent from"attempting to discredit both accuser and accusation." Slip op. at40. How is respondent to "discredit" his accuser and theaccusation when there never was a hearing at which respondent'saccuser testified and was subject to cross-examination? Respondent's accuser never testified at his criminal trial becausethe charges were dropped. His accuser did not testify at theadjudicatory hearing, where no witnesses were called to testify,nor did she testify at the dispositional hearing. We are alsostunned by the dissent's statement that respondent was notprevented "from putting on a defense at the hearing." Slip op. at40. We first note that he was not charged with anything by theState at the time of the hearing; the court cannot make up chargesas it goes along. Secondly, how was respondent to prove anegative, i.e., that no sexual abuse occurred, especially when hisaccuser never testified and was never present for cross-examination? The Star Chamber, inter alia, placed a premium oncompelling subjects of investigation to admit guilt from their ownlips. See People v Baker, 123 Ill. 2d 233, 239 (1988). Unfortunately, that attribute is present in this case.

The State further argues that a trial court "need not waituntil the child is victimized or emotionally damaged" beforeremoving a child from an injurious environment. While true, itdoes not mean that actions may be taken against a parent withoutgiving him a hearing and an opportunity to respond to anyallegations that would require rehabilitation for allegedlycriminal behavior. A case should be decided on the facts inevidence. See In re T.W., 313 Ill. App. 3d 890, 892 (2000). Here,the "facts" before the court were insufficient to warrant the orderof a sexual offender evaluation. The State had the opportunity toprove these allegations of sexual molestation, either in a criminaltrial, in an adjudicatory hearing, or at the dispositional hearingin question. It did none of these things. The court cannotpresume these allegations to be proved without conducting ahearing, nor can it order respondent to prove that he is not asexual offender, especially in light of the insubstantial"evidence" of a sexual offense that was presented to the court.

Respondent next contends that the trial court erred when itadjudicated K.S. a neglected minor and did not place custody of herwith him. We agree.

The State must prove allegations of neglect by a preponderanceof the evidence. S.S., 313 Ill. App. 3d at 126. A preponderanceof the evidence is an amount of evidence that leads a trier of factto find that the fact at issue is more probable than not. S.S.,313 Ill. App. 3d at 126-27. A trial court's determination ofneglect will not be reversed on appeal unless its findings of factare against the manifest weight of the evidence; this is so becausethe trial court is in the better position to observe witnesses,assess credibility, and weigh evidence. S.S., 313 Ill. App. 3d at127. As both parents must be adjudged unfit or unable to care fora child before placement with DCFS is authorized, the allegationsof neglect must be determined as to both parents, especially whereonly one separated parent is alleged to have neglected the child. See S.S., 313 Ill. App. 3d at 127.

Here, the only allegation of neglect that the State did notwithdraw alleged that Valerie created an injurious environment forK.S. because she did not follow the DCFS safety plan. Valeriestipulated to a factual basis for neglect pursuant to thisallegation. However, no allegations against respondent remained,and there was no proof, either through stipulation or introductionof evidence, that respondent had neglected K.S. All evidencerelated to Valerie, not respondent. For this reason, the trialcourt erred in finding that respondent neglected K.S.

The dissent argues that neglect is not specific to a parentand that the identity of the parent responsible for the neglect isirrelevant at the adjudicatory stage. However, this court hasconcluded in both S.S. and In re Arthur H., 338 Ill. App. 3d 1027(2003), that neglect must be proved with respect to each parent. The dissent finds the rationale for these cases to be specious andbased on an erroneous application of section 2--21 of the Act (705ILCS 405/2--21 (West 2000)). However, this court has determinedthat the Act did not adequately address the situation, such as theone before us, where "only one separated parent has abused orneglected the child." S.S., 313 Ill. App. 3d at 127. The actionsin this case appear more serious because, in S.S., both parentswere at least alleged to have abused and neglected the child. Wealso note that in In re C.N., 196 Ill. 2d 181 (2001), the minorsinvolved were initially adjudicated neglected as to the motheronly. See C.N., 196 Ill. 2d at 184, 218. Our supreme court dulynoted this fact twice; it seems anomalous that the court would notcomment on the apparent error of the procedure in that case if, asthe dissent argues, neglect is not specific as to each parent. Theanalysis contained in S.S. and Arthur H. is not only valid law, itis applicable to the facts in this case.

The dissent's reliance on In re R.B., 336 Ill. App. 3d 606(2003), is misplaced. In R.B., the State alleged that the minorwas neglected because of an injurious environment, in that thechild was exposed to the risk of domestic violence. The motheradmitted to the allegation and stipulated to the police reports ofan incident of domestic violence between the mother and therespondent, the child's father, when the minor was present. Therespondent, whose first appearance in court was at the adjudicatoryhearing, was given an opportunity to get an attorney and presentany evidence at a future date. The respondent failed to presentany evidence, and the trial court adjudicated the minor neglected. On appeal, the respondent argued that the evidence was insufficientto " 'prove him guilty' " of neglect. R.B., 336 Ill. App. 3d at614.

The Appellate Court, Fourth District, held that the purpose ofjuvenile proceedings "is to determine the status of the child onwhose behalf the proceedings are brought, not to determine anyparticular person's criminal or civil liability." (Emphasis inoriginal.) R.B., 336 Ill. App. 3d at 614. At an adjudicatoryhearing, the court is to determine whether the minor has beenneglected "as alleged in the State's petition and as defined insection 2--3 of the Act." R.B., 336 Ill. App. 3d at 614. Thepetition in R.B. alleged that the respondent was involved in thedomestic violence that was the basis for the allegation.

In the case before us, K.S. was proved to be neglected "asalleged in the State's petition." However, that petition allegedthat K.S. was neglected because of the actions of her mother, notbecause of respondent's actions. This case does not involve therelative culpability of the parents, as was unsuccessfully arguedby the respondent in R.B. It is easy to infer the jointresponsibility of parents for neglect that occurs when both parentslive with the child, or when the petition alleges that both parentscontributed to the neglect, as was the case in R.B. See also ChynaB., 331 Ill. App. 3d at 596 (where the child fit the definition ofa neglected minor whose environment was injurious "by reason ofrespondent mother's actions and respondent father's inactions infailing to correct the conditions of which he was aware"). However, the petition in this case was not directed againstrespondent, and the trial court's order does not specifically statethat the allegations were directed only against the minor's mother. Such a generalized adjudication is neither fair nor practical. An innocent parent should not be stigmatized by a finding ofneglect that is not based on an allegation against him or her. Thedissent argues that such parents are not stigmatized because theyare "treated differently at the dispositional phase." Slip op. at29. Apparently, the dissent sees no stigma attaching to a parentbeing ordered to undergo an evaluation and potential counseling fora sexual offense that the parent denies occurred and the Statedeclined to prosecute, let alone prove.

Furthermore, the court is required to set forth findings inthe adjudicatory order. Section 2--21 provides that if the courtfinds that a minor is neglected, "the court shall then determineand put in writing the factual basis supporting that ***determination." 705 ILCS 405/2--21(1) (West 2000). There is adefinite purpose for the statutory requirement. The written orderwould set forth the grounds that would ultimately provide for atermination of parental rights if there were no reasonable effortsto correct the grounds that resulted in the original adjudicationof the child. See 750 ILCS 50/1(D)(m) (West 1998). Placing anorder of record that properly conforms to the allegations in thepetition and the consequent findings constitutes the benchmark forrehabilitation and progress in each particular case. In re Z.Z.,312 Ill. App. 3d 800, 803 (2000). The contention of the dissent,that specific findings and adjudications as to the parents areunnecessary, undermines the statutory policy set forth above. Howis a parent to achieve reasonable progress toward the return of theminor or reasonable efforts to correct the conditions that were thebasis for the removal of the child if the basis for the removal wasnot of his doing and the pleadings fail to allege the nature andextent of the problems that are to be resolved?

The dissent posits that the "adjudicatory phase is too earlyin the proceedings to make a final determination on the issue ofwho is responsible for the neglect because all of the relevantinformation is not yet available." Slip op. at 28. We cannotfathom the thought process behind this statement. A neglectpetition does not contain merely a blanket allegation that a childis neglected; it must also contain:

"[C]itations to the appropriate provisions of [the] Act, andset forth *** facts sufficient to bring the minor underSection 2--3 or 2--4 and to inform respondents of the cause ofaction, including, but not limited to, a plain and concisestatement of the factual allegations that form the basis forthe filing of the petition ***." 705 ILCS 405/2--13(2) (West2000).

It is at the adjudicatory hearing that "the relevant information"regarding the factual allegations contained in the neglect petitionis to be presented by the State in its effort to prove thepetition. The petition is either proved or not proved at theadjudicatory hearing; that hearing is not some intermediate phaseof the proceedings. Any other information is "relevant" only ifthe petition is proved and the case proceeds to disposition. Again, the dissent fails to address the fact that the onlyallegation of neglect that remained here involved the child'smother, Valerie. We are not informed by the dissent why the courtwould be unable to determine who is responsible for the neglectwhen only the actions of one parent form the basis of the neglectallegations.

At the time of the shelter care hearing, the court foundprobable cause to believe that K.S was neglected or abused becauseof the possible suffocation of her sibling at the hands of hermother and the "[r]isk of harm" due to respondent "being indicatedfor risk of sexual abuse." The court found immediate and urgentnecessity to remove K.S. from the home and place her in a sheltercare facility because her mother was in jail and respondent had a"prior indicated report of risk of sexual harm." Reasonableefforts to keep K.S. in the home could not be made because hermother was in jail and respondent "has not availed himself to [sic]any sexual offender treatment and has [sic] prior indicatedreport."

A fit parent has a superior right to custody of his child thatcan be superceded only by a showing of good cause to place custodyof the child in a third party. S.S., 313 Ill. App. 3d at 132. Theonly allegations against respondent at the time of the shelter carehearing were the DCFS report and his failure to avail himself ofsexual offender treatment arising out of an incident that he deniedoccurred and that the State declined to prosecute. The State hadthe opportunity to make a showing that placement with a third partywas appropriate in this case, through prosecution of either thecriminal charge or the abuse allegation. It did neither. Thecourt found that respondent neglected K.S. in the absence of anyallegation of neglect against respondent and in the absence of anyevidence other than double or tertiary hearsay allegations. Whilethe best interest of the child is the paramount considerationwhenever a petition for adjudication of wardship is brought (seeS.S., 313 Ill. App. 3d at 126), a trial court cannot disregard theevidence phase and proceed directly to the disposition. Therefore,the court's judgment of neglect as to respondent was against themanifest weight of the evidence and must be reversed.

In the absence of a judgment of neglect or any pending abuseor neglect petition against respondent, there is no good cause toovercome respondent's right to custody to his child and leave K.S.in shelter care. Therefore, the adjudication of wardship must bereversed, and guardianship and custody of K.S. must be placed withrespondent. There being no judgment or pending cases againstrespondent, we find no basis for remanding the case, as isrecommended by the dissent. The dissent correctly points out thatrespondent prayed that this court would reverse the trial court'sjudgment and remand for further proceedings. However, the dissentneglects to read, or fails to understand, the rest of respondent'sargument, wherein respondent argues that "the trial court erred by*** failing to return K.S. to Respondent." We will take respondentat his (printed) word and conclude that respondent did, indeed,seek custody of his daughter.

Contrary to the dissent, the State had notice that respondentwanted K.S. placed with him, and it had the opportunity to addressthis issue on appeal. We find it ironic that the dissent is moreconcerned about the State's "opportunity to present an argument" onthis issue than it is about respondent's opportunity to respond tohearsay allegations of sexual abuse of a child.

The dissent cites to section 2--10(2) of the Act, whichprohibits the return of a minor in shelter care to a parent "untilthe court finds that such placement is no longer necessary for theprotection of the minor." 705 ILCS 405/2--10(2) (West 2000). Thedissent then argues that, since the trial court did not make sucha finding, custody of K.S. should not be given to respondent. Wemust question how the trial court could ever make such a finding ifthe State never attempts to prove the hearsay allegations of sexualabuse, since it was those allegations that were the basis forfinding that placement could not be made with respondent at theshelter care hearing. Again, the dissent would place the burden ofproving that he was not a sex offender on respondent, apparently byundergoing a sex offender evaluation, instead of placing on theState the burden of proving, even by a preponderance of theevidence, that respondent posed a sexual threat. Mere hearsayallegations may have been sufficient for the court to find thatplacement with respondent was not appropriate at the time of theshelter care hearing. However, such flimsy, unproved allegations cannot indefinitely be used to separate respondent and his child. The State has an obligation to plead and prove these allegations ifit wants to rely on them, and it has failed to do this.

If the State believes that K.S. is jeopardized by living withher father, it can file a new petition and seek shelter care again. However, we cannot allow custody of K.S. to be placed elsewhere ifthere is no case pending or no judgment of abuse or neglect. Wealso note that, should the State initiate further proceedings, thedoctrines of res judicata, estoppel by judgment, and any otherappropriate estoppel, as well as the law of the case, may apply tomatters previously raised and decided or that could have beenraised and decided in this case.

For these reasons, the judgment of the circuit court of LakeCounty is reversed.

Reversed.

HUTCHINSON, P.J., concurs.

JUSTICE O'MALLEY, dissenting:

In an enthusiastic misapplication of the best-interest-of-the-child standard, the majority leaps over the trial court and evenbeyond respondent's request and precipitously awards custody torespondent despite the fact that the majority acknowledges thatthere is credible evidence that respondent has engaged in sexualabuse of children. It then proceeds to leap beyond any and allissues in this appeal to warn the State, in a purely advisory way,that even if it thinks that this child "is jeopardized by livingwith her father" (slip op. at 19), any further efforts to protecther may yield to "res judicata, estoppel by judgment, and any otherappropriate estoppel" doctrines (slip op. at 20). All of this ina case where the best interest of the child is supposed to beparamount.

Additionally, the majority incorrectly concludes that neglectis adjudicated separately with respect to each parent under theJuvenile Court Act (Act) when it holds that the trial court'sfinding of neglect was against the manifest weight of the evidence"as to respondent." Because the finding of neglect was notimproper, the trial court's order was within its authority toconduct an investigation under section 2--21(2) (705 ILCS 405/2--21(2) (West 2000)). The trial court, however, needed to make afinding at the dispositional phase on respondent's fitness beforeit placed K.S. in the guardianship of DCFS. I would remand to thetrial court so that an investigation can be conducted pursuant tosection 2--21(2), as well as any other appropriate proceduresavailable to aid the trial court at the dispositional hearing, sothat the trial court can make a determination on respondent'sfitness.

On the issue of whether neglect is adjudicated separately withrespect to each parent, there is a split among our districts, andeven among the justices of this district. Consequently, this pointwill 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 themajority is that it precipitously awards K.S.'s custody torespondent while at the same time conceding that there is "credibleevidence" that he committed sex abuse (slip op. at 6) and where inhis prayer for relief respondent does not even ask for custody tobe returned to him. The majority accuses me of not having read orunderstood the portion of the argument section of respondent'sbrief where he claims that the trial court erred by failing toaward him custody of K.S. Obviously, I have read it, and I thinkthat I understand it. In his prayer for relief respondent asksonly that the trial court be reversed and the cause be remanded forfurther proceedings. What I see as significant is that, althoughrespondent undoubtedly wanted custody, he never imagined that thiscourt would actually give it to him. Even he realizes that ourgranting him custody at this point is grossly inappropriate.

Awarding custody of K.S. to respondent at this point directlycontradicts the express mandate of the Act. Section 2--10(2) ofthe Act provides:

"Once the court finds that it is a matter of immediateand urgent necessity for the protection of the minor that theminor be placed in a shelter care facility, the minor shallnot be returned to the parent, custodian or guardian until thecourt finds that such placement is no longer necessary for theprotection of the minor." (Emphasis added.) 705 ILCS 405/2--10(2) (West 2000).

The trial court made a finding that an immediate and urgentnecessity existed to remove K.S. from her home and place her in ashelter care facility. That finding was based in part on the riskthat respondent would sexually harm K.S. The trial court has notmade a finding that "placement is no longer necessary for theprotection of the minor" as section 2--10(2) requires for custodyto 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. Itsbasis for awarding custody of the minor to respondent is that thereis "no judgment or pending cases against respondent." Slip op. at18. By now granting custody of K.S. to respondent, the majority isdoing what the legislature has expressly forbidden--awardingcustody to a parent without first finding that shelter careplacement is no longer necessary for the protection of the minor.

To make matters worse, because respondent's prayer for reliefdoes not ask us to grant him custody, and so the State has had noopportunity to present an argument that shelter care is stillnecessary for the protection of K.S. The State was not on noticethat the issue was being decided in this appeal, as a result, wehave not even heard what the State has to say on this issue.

The following chronology of events leading up to the award ofcustody of K.S. to respondent highlights the majority's error: DCFS becomes involved with K.S. because of respondent's allegedsexual abuse of both K.S.'s sibling and cousin. Pursuant to a DCFSsafety plan, K.S.'s mother is ordered not to allow K.S. to havecontact with respondent. K.S.'s mother allegedly savagely murdersK.S.'s infant sibling. A petition for adjudication is broughtregarding K.S. The trial court finds an immediate and urgentnecessity to place K.S. in shelter care. An "indicated" DCFSreport regarding respondent's alleged sex abuse is distributed tothe parties. The abuse count alleging that respondent committedsex abuse as well as the counts relating to the murder are droppedwhen the mother stipulates to neglect based on her violation of theDCFS 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 dispositionalphase, the trial court again orders respondent to complete a sexoffender evaluation. Respondent appeals. The majority orderscustody given to respondent.

It seems apparent that, when the neglect petition was filed,respondent already did not have custody of K.S. because themother's DCFS safety plan specifically provided that respondent wasnot to have contact with K.S. Further, neither the DCFS safetyplan nor any of the records regarding K.S.'s involvement with DCFSprior to the filing of the neglect petition are part of the recordin this appeal. We do not know what occurred in those proceedings,nor do we know the precise facts and circumstances surrounding thesafety plan. It simply makes no sense for us to, in effect,overrule those proceedings when they are not before us. The trialcourt should craft the disposition in this case because it isbetter aware of the facts and in a superior position to fill inmissing facts. In fact, the trial court is in a position to findout if the State intends to file a new petition "as to" respondentand, if it sees fit, can even order the State to file one (see Inre D.S., 198 Ill. 2d 309, 332-33 (2002)). I believe that themajority has acted precipitously by granting relief neitherrequested by respondent nor available under the Act. Skipping thestep of remanding the case to the trial court runs the risk ofallowing harm to K.S. that could have been prevented. The majoritymakes 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 otherappropriate estoppel" (hereinafter res judicata) may apply to a newpetition brought by the State based on respondent's alleged sexualabuse. Slip op. at 20. I do not see the point of advising theparties what may apply, especially where the majority'shypothesizing on res judicata directly contradicts its own notionsabout neglect being adjudicated separately with respect to eachparent. According to the majority, "the only allegation of neglectthat the State did not withdraw alleged that Valerie created aninjurious environment for K.S. because she did not follow the DCFSsafety plan" and "no allegations against respondent remained." Slip op. at 12. If the majority really believes that neglect isseparate with respect to each parent, then the issue of neglect "asto" respondent was not tried because the count regardingrespondent's conduct was dropped. The majority's point is that theissue of neglect "as to" respondent was dropped and was neverdecided. Thus, under its theory, res judicata would not apply.

Moreover, even if the issue of neglect "as to" respondent hadbeen before the court, res judicata would not apply because thedoctrines do not apply with full force to a child custody case. Ithas been held that "[c]ourts should be cautious in determining whento apply res judicata in child custody cases." In re Marriage ofWeaver, 228 Ill. App. 3d 609, 616 (1992). Further, "[res judicata]should not be strictly applied to bar evidence when the mostimportant consideration is the welfare of the child." Weaver, 228Ill. App. 3d at 616. Although the Weaver line of cases comes fromdivorce custody proceedings, its logic applies with equal force tojuvenile court proceedings because the primary purpose of both isto protect the best interests of the child. If respondentconfessed tomorrow that he had sexually abused the two minorchildren, the majority would nonetheless order K.S. to be placed inand to remain in the custody of respondent in deference toprinciples of res judicata. Such a rule clearly contravenes theAct's purpose of protecting the best interest of the child and isnot the law. Moreover, the majority fails to explain why itchooses to interject (in a purely advisory way) this point at all.

The majority concludes that "the court's judgment of neglectas to respondent was against the manifest weight of the evidence." Slip op. at 18. Neglect is not determined "as to" a particularparent; 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 stageof the proceedings under the Act; rather, minors are adjudicatedneglected." In re Arthur H., 338 Ill. App. 3d 1027, 1042 (2003)(Kapala, J., dissenting). In fact, nowhere does the Act mentionneglect "as to" a particular parent. That an adjudication ofneglect is not specific to a parent is clear from the plainlanguage of the Act, which provides that, at the adjudicatoryphase, "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 theminor is neglected "as to" each parent. Rather, the sole questionfor the court to determine is whether the child is neglected asdefined in the Act. Section 2--3 (705 ILCS 405/2--3 (West 2000))defines neglect based solely on the condition of the child. Forexample, section 2--3(1)(b) defines as neglected "any minor under18 years of age whose environment is injurious to his or herwelfare." 705 ILCS 405/2--3(1)(b) (West 2000). I fail to see howa child could meet this definition, but meet it only as to oneparent. The definition focuses exclusively on the child and doesnot in any way reference the parents. Thus, the issue of whichparent is responsible is irrelevant to an adjudication of neglect. Neglect "do[es] not address the question of who may be responsiblefor such adverse conditions because, in the first instance, thatquestion does not matter." R.B., 336 Ill. App. 3d at 614. Whatmatters 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(1)(b) (West 2000).

In In re Chyna B., 331 Ill. App. 3d 591 (2002), the minor wasfound to be neglected because "respondent mother had failed tocorrect the conditions that resulted in a prior adjudication ofunfitness to exercise guardianship and/or custody of the minor'ssibling." Chyna B., 331 Ill. App. 3d at 593. Although theallegation in the neglect petition concerned actions only of themother, the Fourth District affirmed the trial court's decisionthat 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 byrespondent father. Chyna B. fit the definition of 'any minorunder 18 years of age whose environment is injurious to his orher welfare' (705 ILCS 405/2--3(1)(b) (West 2000)) by reasonof respondent mother's actions and respondent father'sinactions in failing to correct the conditions of which he wasaware. A minor child may be found neglected even though theprimary fault for creating the injurious environment restswith one parent." Chyna B., 331 Ill. App. 3d at 596.

There is good reason not to determine neglect separately "asto" each parent. The adjudicatory phase is too early in theproceedings to make a final determination on the issue of who isresponsible for the neglect because all of the relevant informationis not yet available. After a child is adjudicated neglected,section 2--21(2) gives the trial court the power to order aninvestigation of, among other things, the child's family situationto assist it at the dispositional hearing. 705 ILCS 405/2--21(2)(West 2000). As the supreme court has noted, "other seriousconditions, existing at the time the child is removed, may becomeknown only after removal, following further investigation of thechild, parent and family situation." In re C.N., 196 Ill. 2d 181,214 (2001).⁽¹⁾ It would make little sense to make a finaldetermination on parental responsibility before the results of theinvestigation were available to the court. As the R.B. courtexplained, "[i]f the State proves the neglect allegation, thencausation--and remediation--can and should be addressed by thetrial court at the dispositional hearing." R.B., 336 Ill. App. 3dat 615. Moreover, the trial court does make, "to the extentpossible," a preliminary finding on the issue of parentalresponsibility at the adjudicatory phase under section 2--21(1). 705 ILCS 405/2--21(1) (West 2000). Parents whose actions oromissions are not found under section 2--21(1) to be the basis ofthe neglect finding are treated differently at the dispositionalphase. See 705 ILCS 405/2--23(a) (West 2000). For this reason,such parents are not "stigmatized" as the majority suggests. Slipop. at 15.

The majority's misguided notion that a child is adjudicatedneglected separately with respect to each parent can be traced toIn re S.S., 313 Ill. App. 3d 121 (2000). That case concluded thatit was "necessary to determine the neglect allegations as to bothparents" because of section 2--27's (705 ILCS 405/2--27 (West2000)) provision that "both parents must be adjudged unfit orunable to care for the child before placement with DCFS isauthorized." S.S., 313 Ill. App. 3d at 127. S.S. explicitly basedits holding on section 2--27. S.S., 313 Ill. App. 3d at 127. Theproblem is that S.S. applied section 2--27 to the wrong stage ofthe proceedings. Section 2--27 speaks only to the requirements forplacing a child in the custody of DCFS at the dispositional stage. 705 ILCS 405/2--27 (West 2000). This "fitness" finding has nothingwhatsoever to do with adjudicating a child neglected, which neitherplaces a child in the custody of DCFS nor is done at thedispositional stage. 705 ILCS 405/2--21 (West 2000). Thus,section 2--27 provides no support for the premise that children areadjudicated neglected separately with respect to each parent. Themistake is then repeated in Arthur H., which cites S.S., but notany provision of the statute, for the same rule. Arthur H., 338Ill. App. 3d at 1034.

The majority apparently concedes that the reasoning behindS.S., and by extension Arthur H., was specious, as it attempts nodefense of the section 2--27 rationale behind those cases. Themajority, however, has posited an alternative argument in favor ofthe same rule. According to the majority, the Adoption Act'sprovision that parental rights may be terminated for "[f]ailure bya parent (i) to make reasonable efforts to correct the conditionsthat 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 ILCS50/1(D)(m) (West 2000). Initially, I note the oddity that themajority looks to a provision of the Adoption Act to determine themeaning of the language of section 2--3 of the Juvenile Court Actinstead of looking at the language of section 2--3 itself. Evenignoring this problem, I disagree with the majority's reasoning. Section 1(D)(m) of the Adoption Act references a parent's failureto correct the condition that was the basis for removal of thechild, not the basis for adjudication of neglect.⁽²⁾ Thus, I fail tosee where section 1(D)(m) has any bearing on an adjudication ofneglect, let alone where it suggests that an adjudication ofneglect is done separately "as to" each parent. Moreover, theunfitness finding necessary for removal, unlike an adjudication ofneglect, 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 requiresthe trial court to "specify, to the extent possible, the acts oromissions or both of each parent *** that form the basis of thecourt's findings" (705 ILCS 405/2--21(1) (West 2000)), is to "setforth the grounds that would ultimately provide for a terminationof parental rights if there were no reasonable efforts to correct[them]." Slip op. at 15. Because section 1(D)(m) requires theparent to correct the condition that was the basis for removal, notto correct the condition that was the basis for the adjudication ofneglect, it would seem more logical for the court at thetermination hearing to look at the written factual basis for thefinding of unfitness required by section 2--27 that led directly tothe removal. Additionally, the more explicit "definite purpose" ofthe trial court's findings made pursuant to section 2--21(1) is todetermine under what circumstances custody of a minor in sheltercare may be restored to a parent at the dispositional phase:

"[I]n any case in which a minor is found by the court tobe neglected or abused under Section 2--3 of this Act, custodyof the minor shall not be restored to any parent *** whoseacts or omissions or both have been identified, pursuant tosubsection (1) of Section 2--21, as forming the basis for thecourt's finding of *** neglect, until such time as a hearingis held on the issue of the best interests of the minor andthe fitness of such parent *** to care for the minor withoutendangering the minor's health or safety, and the court entersan 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 distinguishesparents found to be at fault under section 2--21(1) is surplusageif an adjudication of neglect is separate "as to" each parent. Under the majority's rule, the child of a parent not responsiblefor "forming the basis of the court's finding of *** neglect" isnot neglected "as to" that parent in the first place. If this rulewere accurate, there would be no point to distinguishing parentswho had been found to be responsible for the neglect under section2--21(1) because all parents whose child was neglected "as to" themwould necessarily be responsible for the neglect. The use of thesection 2--21(1) finding to distinguish parents responsible for theneglect would be pointless and surplusage. I think that the Act isclear that an adjudication of neglect is not specific "as to" aparent.

Next, the trial court's determination that K.S. was neglectedwas not against the manifest weight of the evidence. "A minorchild may be found neglected even though the primary fault forcreating the injurious environment rests with one parent." ChynaB., 331 Ill. App. 3d at 596. K.S. lived with her mother. Themother is alleged to have murdered K.S.'s infant sibling in aparticularly horrific fashion. Possibly because she was chargedwith murder, the mother thought it prudent to stipulate to neglectbased on facts unrelated to the death of K.S.'s sibling. Given thefact that K.S. lived with her mother, who has stipulated toneglect, the trial court's finding that K.S. was neglected was notagainst the manifest weight of the evidence.

The majority apparently has some problem regarding stipulatedtestimony although it never explains what that problem is. Themajority states that the "court never heard any direct evidence"(emphasis in original) (slip op. at 6) regarding the sexual abuse,"only a stipulation" (emphasis added). Slip op. at 6. Themajority complains that the court heard only what "caseworkerMartinez would testify to if she were called totestify."  (Emphasis in original.) Slip op. at 5. Stipulationsare encouraged and commonplace. Underlining a description of themdoes not call into question their reliability. What is notablyabsent from the majority's lamentations regarding the stipulatedtestimony is any comment regarding an objection by respondent toallowing Martinez's testimony to come in only through stipulation.

Incredibly, the majority repeatedly emphasizes that respondentwas not part of the reason this child was found to be neglected. The majority notes that the only basis for the neglect finding wasthat Valerie did not follow the safety plan and then states that"all evidence related to Valerie, not respondent." (Slip op. at12). I find this statement amazing and I cannot comprehend how themajority can suggest that respondent had nothing to do with thesafety plan. The plan had only one purpose, to keep respondentaway from the child. The violation was that he had contact withthe child. Furthermore, even if respondent did not agree with thesafety plan, he did not have the right to act in defiance of thetrial court and violate it. In Chyna B., where the allegation inthe neglect petition mentioned only the conduct of the mother, thecourt, nevertheless, held that the father failed to "correct theconditions of which he was aware." Chyna B., 331 Ill. App. 3d at596. Here, respondent was not just aware of the condition that wasthe basis of the neglect petition; he was the condition.

Once K.S. was adjudicated neglected, it was within the trialcourt's discretion to order a sex offender evaluation because therewas evidence presented that respondent had committed a sex offense. The majority relies on its view that respondent's allegedcommission of a sex offense was "uncharged" in the neglectpetition. However, our supreme court has held that even if anissue is not alleged in the neglect petition, it can still be abasis for a service plan or dispositional order. C.N., 196 Ill. 2dat 214. The supreme court stated that "the relevant issues are not'frozen' at the moment custody of the child is taken." C.N., 196Ill. 2d at 213-14. Rather, the necessity of considering otherconditions that later come to light is reflected in the "broadscope" of the investigation that the trial court is authorized toorder 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 canorder a respondent parent to do following an adjudication ofneglect, 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 ("theconditions of a dispositional order need not relate solely to thegrounds for adjudication of wardship").

The trial court had the discretionary power to order aninvestigation 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 bestinterests of the minor to be made a ward of the court] andother determinations at the dispositional hearing, the courtmay order that an investigation be conducted and adispositional report be prepared concerning the minor'sphysical and mental history and condition, family situationand background, economic status, education, occupation,history of delinquency or criminality, personal habits, andany 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 ofdiscretion for the trial court to order further investigationbefore placing custody of K.S. with respondent. The majoritymisses the point when it states that " 'possible' [sex abuse] doesnot rise to the level of proof necessary to order a man to undergoan evaluation and possible counseling for sexual abuse."⁽³⁾ Slip op.at 9. It is paradoxical to require the trial court to have proofof sex abuse before it can order an investigation of sex abuse. Obviously, it makes no sense to make proof a prerequisite toordering an investigation, the purpose of which is to determinewhether there is proof. The majority cites In re Baby Boy Butt, 76Ill. App. 3d 587 (1979), for the premise that an order based onpossible sex abuse is "patent error." Slip op. at 9. Butt,however, dealt with the proof necessary to place a child in theguardianship of DCFS, not the amount of evidence necessary to orderan 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.'ssiblings and K.S.'s cousin accused respondent of sexually molestingthem was enough to justify an investigation under section 2--21(2).

The real question is whether the sex offender evaluation fitswithin the "broad scope" (C.N., 196 Ill. 2d at 214) of theinvestigatory powers granted to the trial court under section 2--21(2). The majority then states that "[c]ompletion of theevaluation would not establish whether respondent sexually molestedT.V." Slip op. at 8. The majority then proceeds to "shudder[] toconsider what other mischief could occur if uncharged ***allegations are mistaken for evidence." Slip op. at 8. I do notunderstand how the majority is so sure what the evaluation would orwould not establish. The only thing we know about what theevaluation process would entail is what the trial court said aboutit. According to the trial court, the evaluators were to reviewthe reports and the children's statements to see if there werecredible recantations and to see " 'whatever the situation is.' " (Emphasis added.) Slip op. at 4. The majority apparently hasbecome hung up on the label, "evaluation," and drawn some unstatedand unjustified conclusions based on that word. In fact, as thetrial court clearly indicated, it expected that the "evaluation"would be exactly the kind of investigation contemplated by section2--21(2). Such a process might very well establish whether therewere credible recantations by the children or a confession byrespondent or, of course, any of the unlimited possibilitiesbetween those two extremes.

The majority never states what the evaluation will entail, butI surmise that it concludes that the evaluation will be limited tosome sort of psychological profile of respondent. Nothing in therecord supports such an assumption, and the comments of the trialcourt that ordered it absolutely belie it. But even if the trialcourt had ordered only a psychological profile, I see the trialcourt's responsibility and discretion under section 2--21(2) asbroad enough to allow this. It is not unreasonable that respondentshould be asked to participate in the investigation, given theunique nature of juvenile proceedings.

Even if the majority believes that the sex offender evaluationis outside the scope of section 2--21(2), it is still inappropriateto reverse the neglect finding, let alone place K.S. inrespondent's custody. The majority would be better served toremand to the trial court, either so that it can clarify what itmeant by a sex offender evaluation or so that it can order aninvestigation 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 itsorder demonstrates the majority's error in accusing the trial courtof abdicating its role as fact finder. The majority quotes thetrial court's explanation, chiding it by italicizing for emphasiseach of the trial court's acknowledgments of what it did not know. See slip op. at 7. These acknowledgments were hardly abdications;they were exactly the sorts of things the Act contemplates will beinvestigated pursuant to section 2--21(2). The trial court neversaid that it intended to automatically adopt the report generatedby the evaluation process or that respondent would be prohibitedfrom challenging it at the dispositional hearing. Thus, themajority's charge that the trial court "relied on the sexualoffender evaluation to prove whether respondent was guilty of theclaimed sexual offenses" (slip op. at 8) is unfounded. As section2--21(2) expressly states, the report is to assist the court at thedispositional hearing. It makes no sense to accuse the trial courtof abdicating its role when it orders proceedings authorized by theAct to assist it.

The majority states: "[W]e must point out the fallacy of thecourt's reasoning. We are unaware of any authority that hasdetermined, pursuant to [Frye v. United States, 293 F. 1013 (D.C.Cir. 1923),] that such an evaluation may be so utilized." Slip op.at 8. The majority's sua sponte suggestion that a sex offenderevaluation fails the Frye test is erroneous. In Frye, a federalappellate court affirmed a district court's determination that alie detector test had not "yet gained such standing and scientificrecognition among physiological and psychological authorities" aswould justify the courts in admitting it. Frye, 293 F. at 1014. Here no party has raised Frye or adduced evidence about thescientific standing of a sex offender evaluation. Worse, we do noteven know what is meant by the term "sex offender evaluation." Thus, there is no basis at this point for the majority to evenoffer a guess as to whether or not the evidence yet to be producedby the evaluation will be admissible under Frye.

Finally, the majority states: "Apparently, the dissent sees nolimit to the size of the net the trial court may cast to find information, as it would allow unreliable, tertiary hearsay topreclude respondent from determining the truth of the chargesbrought by a nonparty." Slip op at 10. This is a perplexingstatement. Use of hearsay evidence is specifically authorized bythe Act. 705 ILCS 405/2--18(4)(c), 2--22(1) (West 2000). Whetheror not the hearsay evidence was "tertiary" misses the point. Respondent does not question that the two children accused him ofsex abuse but, rather, maintains that the children lied. Thus, thefactual content of the Catholic Charities report, i.e., whether ornot the two children said that respondent sexually abused them, wasnever at issue. The record shows that the DCFS report, on whichthe Catholic Charities report was based, was distributed to theparties. It was not entered into evidence because there was noreason for it to be. In this case, there was no functionaldifference between "tertiary" evidence and simple hearsay, and theAct specifically authorizes consideration of hearsay withoutlimitation on the basis of it being "tertiary." 705 ILCS 405/2--18(4)(c), 2--22(1) (West 2000). The majority's assertion that theuse of hearsay evidence precludes respondent from "determining thetruth of the charges brought by a nonparty" (slip op. at 10) is amonumental overstatement. It is true that use of hearsay evidenceprevents respondent's cross-examination of the witness. However,this handicap is compensated for by the fact that the hearsayevidence is accorded lesser weight. 705 ILCS 405/2--18(4)(c) (West2000). Although respondent did not avail himself of thisopportunity, the hearsay evidence did not prevent him from puttingon a defense at the hearing and attempting to discredit bothaccuser and accusation. Importantly, the stipulated testimony andthe hearsay evidence are not being used to force respondent toundergo sex offender treatment or, for that matter, as a basis foran unfitness finding under section 2--27. They are being used asa basis to find more information pursuant to section 2--21(2). Inmy view, this purpose is properly commensurate with the lowerweight accorded to hearsay evidence.

The current procedural posture of this case presents asignificant issue. The trial court entered a dispositional orderthat gave guardianship of K.S. to DCFS and placed her in thecustody of her maternal grandmother. Section 2--27, however,requires that before the trial court may take such action it mustmake a determination that "the parents, guardian, or legalcustodian of [the] minor adjudged a ward of the court are unfit orare unable, for some reason other than financial circumstancesalone, to care for, protect, train or discipline the minor or areunwilling to do so, and that the health, safety, and best interestof the minor will be jeopardized if the minor remains in thecustody 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 thatthe trial court can conduct a hearing to determine respondent'sfitness and ability to care for K.S. The trial court should haveavailable the reports generated as a result of any evaluations orinvestigations conducted pursuant to section 2--21(2). Obviously respondent may participate in such a hearing. Consequently, themajority is wrong when it defends its position by complaining that,otherwise, actions will be taken against respondent without ahearing and the opportunity to respond to the allegations.

I close by distancing myself from the demeaning tone that themajority has taken towards the trial court. For example, themajority states, "one shudders to consider what other mischief could occur if uncharged, unsubstantiated, and unproved allegationsare mistaken for evidence." Slip op. at 8. The implication thatthe trial court was guilty of "mischief" is uncalled for. Generally, these types of cases are emotionally difficult foreveryone involved, including trial judges. This case isparticularly gut wrenching given that it involves the gruesomemurder of an infant and the possible sex abuse of other children. The trial court stated: "[T]here is a founded report [regarding sexabuse]. There was a statement made by one of the girls. And thatyou are the father of a young girl, and that I have to make sureshe is protected." The job of the trial courts in these cases isdifficult enough. Even when they err, there is no need for us toinsult them. Furthermore, it is not error, let alone mischief, toattempt to protect children from such an injurious environment. That the majority sees the evidence differently than the trialcourt does not mean that the trial court engaged in anything otherthan trying to reach the right result in this case.

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

1. The majority points out that C.N. makes reference to atrial court's finding of neglect as to the mother that occurredprior to a second adjudication of neglect that applied to bothparents. C.N., 196 Ill. 2d at 184. However, C.N. merelydescribed the trial court's actions and did not address the issueof whether neglect is determined separately "as to" each parent. C.N., 196 Ill. 2d at 184. Additionally, C.N. is factuallydistinct because, in that case, the father appears to have had nonotice of the neglect proceeding that the majority points to. C.N., 196 Ill. 2d at 184.

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

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