In re A.W.

• Decision Date: 18 September 2008
• Docket Number: No. 104871.,No. 104854.,104854.,104871.
• Citation: 231 Ill.2d 92,896 N.E.2d 316
• Parties: In re A.W. (The People of the State of Illinois, Appellee and Cross-Appellant, v. Eugene W., Appellant and Cross-Appellee).
• Court: Illinois Supreme Court

896 N.E.2d 316

231 Ill.2d 92

In re A.W. (The People of the State of Illinois, Appellee and Cross-Appellant, v. Eugene W., Appellant and Cross-Appellee).

No. 104854.

No. 104871.

Supreme Court of Illinois.

September 18, 2008.

Louis P. Milot, Peoria, for appellant and cross-appellee.

Lisa Madigan, Attorney General, Springfield, Kevin W. Lyons, State's Attorney, Peoria (Michael A. Scodro, Solicitor General, Richard S. Huszagh, Assistant Attorney General, Chicago, Norbert J. Goetten, Terry A. Mertel, Richard T. Leonard, Office of the State's Attorneys Appellate Prosecutor, Ottawa, of counsel), for appellee and cross-appellant.

Robert F. Harris, Kass A. Plain and Janet L. Barnes, Chicago, for amicus curiae Office of the Cook County Public Guardian.

OPINION

Justice KILBRIDE delivered the judgment of the court, with opinion:

The circuit court of Peoria County found A.W., a minor, neglected and made him a ward of the court. Eugene W., the minor's father, appealed. The appellate court upheld the neglect and unfitness findings, but vacated and remanded the cause, finding a violation of Eugene's fifth amendment right against self-incrimination because he was not allowed to complete sex offender counseling without admitting he committed a sex offense. 373 Ill. App.3d 574, 311 Ill.Dec. 400, 868 N.E.2d 400.

We allowed and consolidated the petitions for leave to appeal filed by both Eugene and the State. 210 Ill.2d R. 315. On appeal, Eugene contends the circuit court erred by finding: (1) the doctrine of collateral estoppel barred him from relitigating whether he is a sexual offender based on a prior court's ruling in another juvenile proceeding; (2) A.W. was neglected; and (3) Eugene was unfit to care for A.W. The State contends in its appeal that the appellate court erred in holding the circuit court violated Eugene's fifth amendment right against self-incrimination. We affirm the circuit court judgment and reverse that part of the appellate court judgment vacating the circuit court judgment.

BACKGROUND

In 2005, the State filed a petition alleging neglect of A.W., a minor. The petition stated the minor's environment was injurious to his welfare because: (1) Eugene was found unfit in a 2004 case involving A.W.'s sibling; (2) DCFS "indicated" Eugene for sexual molestation in 1998 and 2002; and (3) Eugene failed to complete court-ordered sex offender counseling. The petition also alleged A.W.'s mother was previously found unfit in 1999, she was found to remain unfit in 2001, and there was no subsequent order finding the mother fit.

At the adjudicatory hearing on January 4, 2006, the State submitted certified copies of the 2004 neglect adjudication of the minor's older sibling. Eugene did not object. The 2004 petition included sexual abuse allegations of the 1998 and 2002 DCFS indicated findings. The circuit court in the 2004 case found the State proved the allegations of the 1998 and 2002 sexual molestations by a preponderance of the evidence, and found the minor sibling neglected and both parents unfit. As a result of the disposition, Eugene was assigned a permanency goal of completing sex offender counseling.

Also at the adjudicatory hearing in this case, Eugene's caseworker testified the mother did not complete individual counseling after five years. The mother admitted she did not comply with required testing for illegal drug usage. The caseworker noted that Eugene completed drug and alcohol assessments and no treatment was recommended. Eugene also completed a sex offender assessment, domestic violence classes, and random drug drops.

Eugene testified and confirmed that he completed successfully a domestic violence class. Eugene also acknowledged the DCFS "indicated reports" of sexual molestation and the referral to sex offender counseling, but insisted he was not convicted of any sex crimes. Based on collateral estoppel, the circuit court prohibited Eugene from presenting evidence to refute the DCFS indications of sexual abuse proved in the 2004 case. The circuit court found the 1998 and 2002 reports of sexual abuse in the sibling's 2004 neglect proceeding were identical to the 1998 and 2002 reports of sexual abuse in this proceeding. The court noted that, in the 2004 sibling's case, the juvenile court judge found the allegations of sexual molestation in 1998 and 2002 were proven by a preponderance of the evidence and the findings were affirmed on appeal. Eugene was permitted to make an offer of proof consisting largely of previous testimony denying he sexually abused anyone in 1998 and 2002.

The circuit court determined Eugene had not overcome the finding of unfitness from the sibling's prior case because he failed to complete sex offender counseling. The circuit court concluded the State proved A.W. was living in an injurious environment and both parents "remain unfit."

At the dispositional hearing, the circuit court took judicial notice of the appellate court decision in the 2004 case. The court also reviewed the social history report, the counseling summary report, and the foster-care progress report prepared for the case. These reports disclosed the mother and Eugene denied being romantically involved. The mother has four other children in state care. She has been in and out of substance abuse treatment for several years and she has difficulty maintaining employment. The reports showed the mother failed to comply with drug testing. She struggled with anger. She was not making significant progress in counseling and she has a history of unstable housing. The mother admitted putting her kids at risk and in jeopardy.

The reports indicate that during sex offender counseling Eugene made minimal progress because he failed to attend regularly and continued to deny the reported incidents of abuse. After being assigned a counselor in 2005, Eugene missed six scheduled appointments. Eugene also attended sessions with a different sex abuse counselor, but he was discharged in March 2006 for "being uncooperative." Eugene's caseworker encouraged him to return to sex abuse counseling "to at least learn something from the sessions" even if he did not admit any sexual offenses.

Eugene testified that he attended sex offender counseling, but the counselor would not continue the program unless he admitted to committing a sex offense. According to Eugene, he was unwilling to incriminate himself and the therapist discharged him unsuccessfully from the program. Thus, based on the prior adjudication of unfitness continuing into 2006, the circuit court found Eugene unfit to care for A.W.

The appellate court found the trial court properly ruled that the doctrine of collateral estoppel barred Eugene from introducing evidence to rebut the sexual abuse allegations. The appellate court also upheld the circuit court's neglect and unfitness determinations. The appellate court, however, concluded that Eugene's constitutional right against self-incrimination was violated when he was prevented from completing sex offender counseling based on his refusal to incriminate himself. The appellate court vacated the judgment of the circuit court and remanded the cause to reopen the dispositional hearing for the limited purpose of allowing Eugene to propose his own service plan that would allow him to complete sex offender counseling without incriminating himself.

We allowed Eugene's petition for leave to appeal the neglect and unfitness determinations. 210 Ill.2d R. 315. We also allowed the State's petition for leave to appeal the reversal of the dispositional order (210 Ill.2d R. 315), and consolidated both appeals. We permitted the office of the Cook County public guardian to file an amicus curiae brief. 155 Ill.2d R. 345.

I. ANALYSIS

On appeal, Eugene challenges the circuit court's collateral estoppel ruling, as well as its neglect and unfitness findings. In its appeal, the State contends the appellate court erred in concluding that Eugene's fifth amendment rights were violated.

A. Collateral Estoppel

Eugene contends the circuit court erred in ruling that collateral estoppel bars him from introducing evidence to refute the State's allegation that he is a sex offender. Specifically, Eugene's brief states he "sought to introduce evidence pertaining to the DCFS indicated reports relating to his alleged sexual molestation in November of 1998 and September of 2002." The State counters that the circuit court properly refused to allow Eugene to relitigate the issue of the 1998 and 2002 sexual abuses decided in the 2004 case.

The doctrine of collateral estoppel "bars relitigation of an issue already decided in a prior case." People v. Tenner, 206 Ill.2d 381, 396, 276 Ill.Dec. 343, 794 N.E.2d 238 (2002). We review de novo the applicability of the collateral estoppel doctrine as a question of law. People v. Sutherland, 223 Ill.2d 187, 197, 307 Ill.Dec. 524, 860 N.E.2d 178 (2006).

There are three requirements for application of collateral estoppel:

"(1) the issue decided in the prior adjudication is identical with the one presented in the suit in question, (2) there was a final judgment on the merits in the prior adjudication, and (3) the party against whom estoppel is asserted was a party or in privity with a party to the prior adjudication." Gumma v. White, 216 Ill.2d 23, 38, 295 Ill.Dec. 628, 833 N.E.2d 834 (2005).

Additionally, "[f]or purposes of applying the doctrine of collateral estoppel, finality requires that the potential for appellate review must have been exhausted." Ballweg v. City of Springfield, 114 Ill.2d 107, 113, 102 Ill.Dec. 360, 499 N.E.2d 1373 (1986).

Here, Eugene sought to introduce evidence to refute the DCFS "indicated reports" of alleged sexual molestations in November 1998 and September 2002. The record does not show that Eugene sought administrative decision review, administrative decision appeal, or judicial review of the DCFS "indicated" findings. See 325 ILCS 5/7.16 (West 2004); 735 ILCS 5/3-101 et seq. (West...