Child Can be Placed Outside Parent's Custody Even When Parent is Found Fit at Dispositional Hearing

   In re A.S., 2014 IL App (3d) 130163

     In August 2012 the State filed a Petition for Adjudication of Wardship alleging 4-year-old A.S. was neglected due to an injurious environment while in his mother's care. In December 2012, the court adjudged A.S. to be neglected.  On January 24, 2014, a dispositional hearing was held.  The family caseworker, Ms. Novak, testified that the father and his wife had cooperated with the agency's requests and would ensure the safety of A.S. if the minor was in their care.  The court adjudged A.S. a ward of the court, found mother to be unfit and father to be fit.  Father was named A.S.'s guardian and the minor was placed in his care.
   Sometime after the dispositional hearing, a former DCFS intact worker for the family contacted Ms. Novak and informed her that when the father and his wife were receiving intact services, they were uncooperative with the DCFS worker.  Additionally, the DCFS worker reported that the father and his wife had unresolved substance abuse issues.  The intact case closed when the family moved to Iowa.
     On January 29, 2014, Ms. Novak had a telephone conversation with father's wife, who complained about the way the family had been treated by DCFS.  The wife appeared to be unwilling to allow Ms. Novak to conduct unannounced home visits.
     On January 31, 2014, Ms. Novak made a home visit.  A.S. was clean, showed no signs of abuse, and his bedroom was clean and appropriate.  However, Ms. Novak noted that father appeared to be under the influence of drugs or alcohol, the father and his wife were unwilling to sign consents to talk about the case in front of each other, and the worker described the mood as hostile and unwelcoming.   The wife's father was also in the home during the visit.  He questioned the worker's capabilities and contended that constitutional rights were being violated.  Following this home visit the wife contacted the agency many times complaining of the worker.
     On February 7, 2013, the State filed a Motion to Reopen Dispositional Hearing and/or Motion to Modify Guardianship.  On February 21, 2013, Ms. Novak filed a "status alert" documenting her concerns about the new information she obtained from the previous caseworker.  On that same day a hearing took place on the State's motion.  Following the hearing in which Ms. Novak testified and her status alert was introduced into evidence, the trial court found it was not in A.S.'s best interest to remain his father's care.  The court appointed DCFS to serve as A.S.'s guardian.  Father appealed this order.
    The appellate court began its analysis by identifying the standard of review for a dispositional finding as whether the finding was against the manifest weight of the evidence or whether the court abused its discretion when selecting its dispositional order.  Under the Juvenile Court Act, the court must first find that it is in the child's best interest to be made a ward of the court.  Only after that finding can the court then determine what type of dispositional order to enter.  The court relied on Austin W., 214 Ill.2d 31 which ruled that it is not necessary that a parent be found unfit before a court can place the minor outside the parent's custody.  Moreover, even though a dispositional order is final for appeal purposes, the order can be modified at any time if it is in the child's best interest.  In this case, given the prior intact history of the father and his wife, the unresolved substance abuse issues, and the wife's uncontrolled behavior the trial court's finding to terminate placement of A.S. with his father was not against the manifest weight of the evidence.

Improper Search and Seizure of Respondent-Minor following Terry Stop

                                   In re Rafeale E., 2014 IL App (1st) 133027

     Respondent-Minor appealed an adjudication of delinquency for possession of controlled substances.  Specifically, Respondent appealed the trial court's denial of Respondent's Motion to Quash Arrest and Suppress Evidence.  The appellate court found the trial court erred in denying Respondent's motion.

    The State filed a petition for adjudication of wardship for possession of a controlled substance.  At the hearing for Respondent's motion to quash arrest and suppress evidence, the police officer testified that he observed the Respondent with 4 - 6 other individuals at the mouth of an alley at 10:00 a.m.  in a "high narcotics location."  The officer saw the Respondent walk briskly away from the group and towards the open sidewalk.  The officer pulled the squad car over to the Respondent, got out, and ordered the Respondent to stop, which the Respondent did.  The officer then ordered the Respondent to take his hands out of his pockets.  The Respondent raised his hands, causing his shirt to rise above his waistband.  The officer observed a plastic bag taped to Respondent's waistband.  The officer then searched the Respondent and found bags containing what appeared to be controlled substances.  The trial court denied the Respondent's motion to quash arrest and suppress evidence.  

     The Appellate Court applied a de novo standard of review because at issue was the trial court's legal conclusions only.  The appellate court began its analysis by referencing the IV Amendment of the U.S. Constitution and the Illinois Constitution, Article 1, Sec. 6, which protects individuals from unreasonable searches and seizures.  The court then referenced "3 tiers of police-citizen encounters" identified by the U.S. Supreme Court:  1.  arrests based on probable cause; 2. brief stops, or Terry stops, based on an officer's reasonable, articulable suspicion of criminal activity; and 3.  consensual encounters.  In this case the appellate court found that the encounter between the officer and the Respondent was a Terry stop.   

     The appellate court then referred to U.S. v. Mendenhall, 446 U.S. 544 (1980) which identified 4 circumstances in which a non-consensual stop can occur:  1.  the threatening presence of police officers; 2.  the officer's weapon in plain sight; 3. the officer touching the person, or 4. the officer's tone indicating the person must follow the officer's orders.  These 4 factors are determined by an objective standard; that is, whether a reasonable innocent person believed he was not free to decline the officer's request.  

     In this case, the appellate court found the evidence in support of a Terry stop was 1. the squad car pulling alongside the Respondent; 2. the officer immediately getting out of the car and focusing on the Respondent; and 3.  the officer giving the Respondent the two orders.   

    The appellate court next looked at whether the officer had a "reasonable articulable suspicion that Respondent was involved in criminal activity or was armed and dangerous" to justify a Terry stop.  (Para. 25)  The appellate court distinguished this case from Illinois v. Wardlow, 528 U.S. 719 (2000), which justified a Terry stop when the defendant ran away from police and into an alley.  In this case, the appellate court found that the evidence established the Respondent was walking, not running, away from the group of individuals, not from the police.  The Respondent, who was standing at the mouth of the alley, walked away from the alley towards the open sidewalk.  The appellate court found that the evidence established that the Respondent was not attempting to evade the police.  Moreover, the officer testified that he did not observe the Respondent engaging in any criminal activity prior to stopping the minor.  Thus, the appellate court held that the trial court erred when denying the Respondent's motion to quash arrest and suppress evidence.  The appellate court reversed the finding of delinquency.