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August 24, 2001

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JUSTICE LYTTON delivered the opinion of the court:

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The respondent, Terry B., Sr., (Terry) was charged withneglect of his child because he had been convicted of predatorycriminal sexual assault. The State filed a motion for summaryjudgment, which the trial court granted. We reverse and remand forfurther proceedings.

On October 28, 1999, an assistant State's Attorney forTazewell County filed a petition under section 2--3(1)(b) of theJuvenile Court Act of 1987 (Act) (705 ILCS 405/2--3(1)(b) (West1998)), alleging that Terry was guilty of neglecting his minor sondue to the injurious environment created by Terry's conviction forpredatory criminal sexual assault of a child. Terry filed ananswer admitting the conviction but denying that it created aninjurious environment for his son as a matter of law. The Statefiled a motion for summary judgment, arguing that "[t]he nature ofthe offense *** is sufficient evidence to support a finding thatthe environment of the Minor *** is injurious to his welfare eventhough [Terry's] sexual abuse was perpetrated on a female childunder the age of 13." The trial court granted the State's motion.

In reviewing a summary judgment order, we will consider denovo whether any genuine issue of material fact remained and, ifnot, whether judgment was properly entered as a matter of law. Prodromos v. Forty East Cedar Condominium Assn., 264 Ill. App. 3d363, 367, 636 N.E.2d 846, 849 (1994).

Terry argues that it is improper to grant summary judgment forthe State without considering facts related to his conviction thatare outside the record at this stage of the proceedings.

The State and the attorney for the minor contend that theentry of summary judgment is supported by the decisions in In reDavid D., 202 Ill. App. 3d 1090, 560 N.E.2d 966 (1990), and In reHarpman, 146 Ill. App. 3d 504, 496 N.E.2d 1242 (1986). However,these decisions are inapplicable to the instant case.

In David D., the trial court dismissed the case against therespondent because the State failed to make a prima facie case. Onreview, the appellate court held that the State's prima facieshowing at trial that the father had sexually abused his daughterin their house was sufficient to constitute an injuriousenvironment for the girl's brother. In re David D., 202 Ill. App.3d at 1094, 560 N.E.2d at 968. The court remanded the cause forcontinuation of the trial and the presentation of the father'scase. In In re Harpman, 146 Ill. App. 3d 504, 496 N.E.2d 1242(1986), the court affirmed the trial court's finding of aninjurious environment after the completion of full evidentiaryhearings.

In contrast to these cases, this case involves a summaryjudgment order that precludes Terry from presenting evidence. Theissue here is whether the mere existence of a conviction for sexualabuse of a minor is a sufficient basis, standing alone, toconstitute an injurious environment per se. At this stage of theproceedings, we are not concerned about the quantum of evidencenecessary to meet the State's initial burden of proof at trial or,whether, after trial, there is sufficient evidence to prove aninjurious environment.

Terry cites In re L.M., 319 Ill. App. 3d 865, 866, 747 N.E.2d440, 441 (2001), in support of his argument. In L.M., the Statefiled a petition alleging that the respondent's minor child wasneglected because she was left in his care after he was convictedof aggravated criminal sexual abuse against the child's teenagemother. At the close of the State's case, the respondent filed amotion for a directed finding, arguing that the State had not metits burden of showing the child's environment was injurious to herwelfare; the motion was denied, and at the conclusion of the trial,the State's petition was granted. The appellate court reversed,holding that a directed finding should have been entered againstthe State because the respondent's status as a sex offender, byitself, did not prove an injurious environment. In re L.M., 319Ill. App. 3d at 868, 747 N.E.2d at 443.

We read this case narrowly to apply only to its unique factsand believe that the entry of a directed finding for a respondentin this type of case would rarely be justified. However, we findthat the mere fact that a respondent has been convicted of a sexoffense against a minor, without more, is insufficient to create aninjurious environment as a matter of law. Our supreme court hasstated that parents have a strong fundamental liberty interest inthe care and custody of their children. See In re A.H., 195 Ill.2d 408, 423, 748 N.E.2d 183, 192 (2001). This constitutionalinterest is implicated whenever the State seeks to remove a chidfrom the custody of a parent. See In re A.H., 195 Ill. 2d at 422-23, 748 N.E.2d at 192. The respondent's due process rights as aparent are undermined when a neglect finding is entered basedentirely on the respondent's conviction of a sex offense against aminor, without giving the respondent an opportunity to presentevidence.

Moreover, we believe that genuine questions of material factremain in this case, precluding the entry of summary judgment. TheState's petition and motion for summary judgment allege only thatTerry was convicted of sexually abusing a "female child under theage of 13." Although the State's neglect petition notes the numberof Terry's criminal case, there is no indication that the trialcourt reviewed this file or considered any of the specific factscontained in it relating to Terry's conviction prior to renderingits decision.

The State claims that "[t]he respondent *** presented noevidence to rebut the prima facie evidence of neglect" and, infact, admitted his conviction. The presentation of a prima faciecase is in petitioner's initial burden of proof at trial. Seegenerally Denis F. McKenna Co. v. Smith, 302 Ill. App. 3d 28, 31,704 N.E.2d 826, 829 (1998). Here, there has been no trial. Sincesummary judgment was entered for the State, Terry has been deniedthe opportunity to present his case to the trier of fact.

Finally, the attorney for the minor argues that "the courtcould draw the inference that an injurious environment exists" fromthe factual allegations in the pleadings and the classification ofthe offense for sentencing purposes. However, the existence ofmore than one possible reasonable inference from the alleged factsindicates that questions of material fact remain to be decided attrial by the fact finder. Tribune Co. v. Allstate Insurance Co.,306 Ill. App. 3d 779, 790, 715 N.E.2d 263, 272 (1999) (as modifiedon denial of rehearing).

Under these circumstances, summary judgment is inappropriate,and a full evidentiary hearing is required. At such a hearing,both parties can fully develop all the facts relevant to the trialcourt's decision. The trial court erred by granting the State'smotion for summary judgment.

The judgment of the circuit court of Tazewell County isreversed, and the cause is remanded for further proceedings.

Reversed and remanded.

HOLDRIDGE and McDADE, JJ., concur.