DISPOSITIONAL HEARING

DISPOSITIONAL HEARING

A. Burden of Proof :

If the State’s burden is met at Adjudication, the Court must determine whether it

is consistent with the health, safety and best interests of the minor and the public that the

child be made a ward of the Court. In re N.B., 191 Ill.2d 338, 343, 730 N.E.2d 1086

(2000); 705 ILCS 405/2-21(2) All findings at the disposition must be supported by a

preponderance of the evidence. In re Christopher S., 364 Ill. App. 3d 76, 845 N.E.2d 830

(1st Dist. 2006) Of course, where the evidence at the Adjudicatory hearing is insufficient,

it is likely insufficient on the same issue at a Dispositional hearing. In re J.H., 212 Ill.

conclusive evidence of unfitness in a new juvenile case. In re J.C., 396 Ill. App. 3d 1050,

1056-57, 920 N.E.2d 1285, 1290-91 (3rd Dist. 2009) However, when a parent’s

dispositional fitness is being considered, “the standard of proof in a trial court's section 2-

27 finding of unfitness that does not result in a complete termination of all parental rights

is [the] preponderance of the evidence.” In re April C., 326 Ill. App. 3d 225, 257, 760

N.E.2d 85, 110 (1st Dist. 2001); In re P.F., 265 Ill. App. 3d 1092, 638 N.E.2d 716 (1st

Dist. 1994) Because a determination of unfitness pursuant to section 2-27 does not result

in a termination of parental rights, the standard of proof is the less rigorous

preponderance of the evidence and the court's determination of unfitness under that

section will be disturbed on review only when found to be against the manifest weight of

199 Ill. App. 3d 1050, 557 N.E.2d 959, 963 (3rd Dist. 1990) (Where a parent has made

reasonable and arguable significant progress and has willingly taken part in

recommended programs, such constitutes a sufficient refutation of the State’s claim of

unfitness). See discussion of “Modification of Dispositional and Custody Orders” below.

C. Rule(s) of Evidence :

If the trial court determines that the minor child is abused, neglected, or

dependent, the court shall then proceed to the second step—the dispositional hearing—

and determine whether the minor should be made a ward of the court. In re Timothy T.,

343 Ill. App. 3d 1260, 799 N.E.2d 994, 996 (4th Dist.2003); 705 ILCS 405/2-21(2) The

civil rules of evidence modified by §2-18 of the JCA apply to dispositional hearings.

disposition best serving the health, safety and interests of the minor and the

public. The court also shall consider the permanency goal set for the minor, the

nature of the service plan for the minor and the services delivered and to be

delivered under the plan. All evidence helpful in determining these questions,

including oral and written reports, may be admitted and may be relied upon to the

extent of its probative value, even though not competent for the purposes of the

adjudicatory hearing.

(2) Once all parties respondent have been served in compliance with Sections 2-

15 and 2-16, no further service or notice must be given to a party prior to

proceeding to a dispositional hearing. Before making an order of disposition the

attorneys for the parties. Factual contents, conclusions, documents and sources

disclosed by the court under this paragraph shall not be further disclosed without

the express approval of the court pursuant to an in camera hearing.

(3) A record of a prior continuance under supervision under Section 2-20, whether

successfully completed with regard to the child's health, safety and best interest,

or not, is admissible at the dispositional hearing. . .” [Emphasis added] 705 ILCS

405/2-22

D. Admissible Evidence :

The plain language of section 2-22(1) (formerly section 705-1(1)) of the Juvenile

Court Act shows the legislature's intent to give trial courts wide latitude in admitting

hearing); In re L.M., 189 Ill. App. 3d 392, 545 N.E.2d 319 (1st Dist. 1989) (Evidence

may include oral or written reports though it may not be competent at adjudicatory stage)

but see In re J.B., 346 Ill. App. 3d 77, 803 N.E.2d 997 (1st Dist. 2004) (Section 2-22(1) of

the JCA does not provide that hearsay testimony is allowed at a best interest hearing or

dispositional hearing) The trial court may consider evidence beyond the conditions

requiring removal at that time but may consider other serious matters that have come to

light following removal. See generally In re Chyna B., 331 Ill. App. 3d 591, 772 N.E.2d

301 (4th Dist. 2002) This can include matters not necessarily raised in the petition. In re

J.H., 212 Ill. App. 3d 22, 570 N.E.2d 689 (3rd Dist. 1991) Also, any record of a prior

continuance under supervision is admissible at a dispositional hearing. 705 ILCS 405/2-

Dist. 1981) (Social history containing hearsay statements admissible but subject to

contravention under Act) Where the trial court considers reports, the parties shall have

the opportunity to review the reports and cross -examine the authors on the record. In re

Rosmis, 26 Ill. App. 2d 226, 167 N.E.2d 826 (2nd Dist. 1960)(Right to cross-examine

child representative who prepared report for court)

DCFS has an affirmative duty to provide full, accurate and timely reports and case

plans to the court and the parties. In re K.C., 325 Ill. App. 3d 771, 759 N.E.2d 15 (1st

Dist. 2001) see also Reports required by court. In re F.B., 206 Ill. App. 3d 140, 564

N.E.2d 173 (1st Dist. 1990)

E. Modification of Dispositional and Custody Orders :

In re S.M., 223 Ill. App. 3d 543, 585 N.E.2d 641 (4th Dist. 1992) The trial court may

modify a prior dispositional order if it is in the best interests of the minor to do so. In re

Austin W., 214 Ill.2d 31, 823 N.E.2d 572, 580 (2005) On a petition for change of

custody, the burden of proof is on the person who filed the petition for change of custody

to show, by a preponderance of the evidence, that a change of custody is in the best

interest of the minor. In re Austin W., 214 Ill.2d 31, 823 N.E.2d 572 (2005); 705 ILCS

405/2-28(4)

V.

PERMANENCY HEARINGS/REVIEWS [705 ILCS 405/2-28]

A. Burden of Proof :

It has been noted that the evidentiary rules that apply to the dispositional hearing

also apply to subsequent permanency review hearings. In re S.M., 223 Ill. App. 3d 543,

585 N.E.2d 641 (4th Dist. 1992) Any evidence sought to be introduced at a Permanency

Review hearing must be relevant to the stated purposes of §2-28. 705 ILCS 405/2-28

Section 2-28 provides in pertinent part as follows:

“(1) The court may require any legal custodian or guardian of the person

appointed under this Act to report periodically to the court or may cite him into

court and require him or his agency, to make a full and accurate report of his or its

doings in behalf of the minor. The custodian or guardian, within 10 days after

such citation, shall make the report, either in writing verified by affidavit or orally

determination and (ii) for any minor age 16 or over, a written description of the

programs and services that will enable the minor to prepare for independent

living. The agency's written report must detail what progress or lack of progress

the parent has made in correcting the conditions requiring the child to be in care;

whether the child can be returned home without jeopardizing the child's health,

safety, and welfare, and if not, what permanency goal is recommended to be in

the best interests of the child, and why the other permanency goals are not

appropriate. The caseworker must appear and testify at the permanency hearing.

* * *

The court shall consider (i) the permanency goal contained in the service plan, (ii)

affirmation.