                          NO. 4-08-0385        Filed 11/4/09

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

In re: SETH S., a Minor,               )   Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS,   )   Circuit Court of
          Petitioner-Appellee,         )   Schuyler County
          v.                           )   No. 06JD22
SETH S.,                               )
          Respondent-Appellant.        )   Honorable
                                       )   Alesia A. McMillen,
                                       )   Judge Presiding.
_________________________________________________________________

           JUSTICE MYERSCOUGH delivered the opinion of the court:

           In October 2006, the State filed a petition for the

adjudication of wardship of respondent, Seth S., born October 29,

1991.   The petition alleged that respondent was delinquent for

committing two offenses of aggravated criminal sexual assault

against his sister (720 ILCS 5/12-14(b)(i) (West 2006)) and one

offense of sexual abuse against his brother (720 ILCS 5/12-15(b)

(West 2006)).   In May 2007, respondent pleaded guilty, and the

trial court sentenced him to five years of probation.

           In January 2008, the trial court revoked respondent's

probation.   In February 2008, the court resentenced respondent to

an indeterminate term in the Department of Juvenile Justice

(DOJJ).

           Respondent appeals, arguing (1) the trial court erred

by revoking respondent's probation because (a) the trial judge

was biased against probation from the outset as evidenced by her

comments and impatience throughout the case and (b) the record

established respondent's slow but satisfactory progress toward
treatment goals; and (2) the trial court erred by committing

respondent to DOJJ where (a) the trial judge relied on her review

and interpretation of judicial training material that she refused

to make part of the record and (b) the disposition was against

the manifest weight of the evidence and fatally tainted by the

court's misuse of the Juvenile Sex-Offender Assessment Protocol-

II (J-SOAP-II)) materials that were not in the record.   We affirm

the trial court's order revoking respondent's probation but

reverse the court's dispositional order and remand for a new

dispositional hearing.

                           I. BACKGROUND

          The petition for adjudication of wardship alleged that

between January 1, 2003, and April 7, 2006, respondent committed

the offense of aggravated criminal sexual assault (720 ILCS 5/12-

14(b)(i) (West 2006)) in that respondent (1) committed an act of

sexual penetration with J.S., who was under age nine, involving

the mouth of J.S. and the penis of respondent and (2) committed

an act of sexual penetration with J.S. involving the vagina of

J.S. and the penis of respondent.   The petition also alleged that

between July 2003 and April 7, 2006, respondent committed the

offense of criminal sexual abuse (720 ILCS 5/12-15(b) (West

2006)) by committing an act of sexual conduct with T.S., who was

at least 9 years old but under the age of 17 when the act was

committed, involving the penis of T.S. and the hand of respondent

and done for the purpose of sexual gratification or arousal of

respondent.   J.S. was respondent's younger sister (born August


                               - 2 -
31, 1999), and T.S. was respondent's younger brother (born June

17, 1994).

   A. Facts Pertaining to the January and March 2007 Hearings

            In January 2007, the parties proposed a plea agreement.

Under the proposed agreement, respondent would be placed on

probation for five years with the standard conditions, as well as

the condition that he successfully complete sex-offender treat-

ment and counseling with an approved counselor.    The parties also

agreed to waive a social-history report because respondent had

already undergone a sex-offender evaluation.    The trial court

reviewed the sex-offender evaluation, which is contained in the

record on appeal.

            The sex-offender evaluation, conducted in September

2006 by Karen L. Streight, M.A., LCPC, reported that respondent

had a "previous history of assault on peers and fire setting."

Respondent reported (1) his parents had problems with marital

discord and (2) past physical abuse of respondent by his father

and recent verbal abuse.

            Streight's report also indicated that in the spring of

2006, after discovery of respondent's sexual abuse of his sib-

lings, respondent went to live with his grandmother.    The family

engaged in counseling, and a safety plan was implemented that

prohibited unsupervised contact between respondent and his

siblings.    However, respondent's parents began to allow visits

between the children.    Respondent admitted molesting his sister

once during those visits, although his sister reported it oc-


                                - 3 -
curred three times.    Streight's report noted that the Department

of Children and Family Services (DCFS) investigator, law enforce-

ment, and the child-welfare specialist recommended residential

treatment.   Streight recommended outpatient treatment because (1)

no evidence suggested that respondent's overall behavior and

functioning ability were significantly compromised; and (2) he

was not mentally retarded and, during the interview, Streight

observed no blatant obstacles to respondent's ability to acquire

and apply knowledge.   Streight noted, however, that if it became

evident that respondent was not gaining internal-control mecha-

nisms or that he failed to make progress, treatment in a residen-

tial setting should be considered.

          At the conclusion of the hearing, the trial court

expressed concern with the proposed agreement and questioned

whether an "inpatient placement" was more appropriate.   The court

also expressed concern with respondent attending the public high

school that was only separated from the middle school by an

unlocked door.   The State's Attorney and the DCFS representative

advised the court that respondent had a one-on-one aide with him

at all times at the school (because of the allegations against

respondent).   Nonetheless, the court set the matter for an

adjudicatory hearing with the understanding that respondent would

begin counseling immediately with Terry Campbell, and the court

would, with the agreement of the parties, conduct a phone confer-

ence with Streight and Campbell.

          At the next hearing in March 2007, the trial judge


                                - 4 -
indicated she had spoken with the counselors.   The judge reported

that Campbell informed her that respondent was doing well in

outpatient treatment.   Campbell also indicated he would submit a

report addressing respondent's likelihood of reoffending.   The

trial court's March 2007 review order directed the State to

contact Campbell for an updated report.

          On April 24, 2007, the State filed an April 2007 report

prepared by Campbell.   The cover letter on the report noted that

(1) treatment was slow and lengthy due to the issues and respon-

dent's limited intellectual capacity and (2) J-SOAP-II placed

respondent in a group of sex offenders whose proportion of risk

was in the "low moderate" range.   The report itself outlined

Campbell's various testing of respondent, including the adminis-

tration of J-SOAP-II, a checklist whose purpose is to aid in the

systematic review of risk factors that have been identified in

the professional literature as being associated with sexual and

criminal offending.   Campbell's report noted that respondent's

risk factors as identified in J-SOAP-II included (1) the number

of victims (factor 2), (2) that a male child victim was involved

(factor 3), (3) the duration of the offense history (factor 4),

(4) the planning of the offense (factor 5), (5) respondent's

sexualized aggression (factor 6), (6) respondent's sexual drive

and preoccupation (factor 7), (7) respondent's pervasive anger

(factor 10), (8) respondent's school behavior problems (factor

11), and (9) respondent's physical-assault history-exposure to

family violence (factor 16).


                               - 5 -
      B. Facts Pertaining to the May 2007 Negotiated Plea

           In May 2007, respondent entered a negotiated plea to

all three counts.   After receiving a factual basis and confirming

that the plea was voluntary, knowing, and intelligent, the trial

court accepted the plea.

           In the written order, the trial court made respondent a

ward of the court and placed respondent on probation for five

years.   The court directed that respondent live with his grand-

mother or other adult approved by DCFS.   One of the conditions of

respondent's probation was that he undergo and successfully

complete sex-offender treatment and counseling.

    C. Facts Pertaining to the August 1, 2007, Status Hearing

           The status-review-hearing documents filed in advance of

the August 1, 2007, status hearing provided the following.

Respondent's progress in counseling was slow, and Campbell had

indicated to respondent's parents that respondent would be in

treatment the entire five years of probation.   Respondent's

cognitive ability and general verbal comprehension abilities were

in the "extremely low" range, while his general perceptual

reasoning abilities were in the "borderline" range.

           Campbell's report indicated--without providing a time

frame--that respondent had been taking his grandmother's under-

wear, Kotex, and Vaseline and masturbating with those items.

"Early on" he was seen by his grandmother masturbating in his

bedroom.   However, the report indicated that respondent denied

any sexual fantasies for a month or so.


                               - 6 -
           At the August 1, 2007, status hearing, the trial court

confirmed receipt of the status and addendum and that no one had

any additions or corrections.   The court noted that respondent

had not made much progress in counseling.   The court advised

respondent that if he did not make significantly more improve-

ment, "this isn't going to work."   The court specifically re-

ferred to respondent engaging in "that kind of behavior" in the

view and presence of his grandmother.   The court also expressed

concern with respondent attending the public school.       The court

acknowledged that respondent would be in therapy throughout his

probation but that the issue was whether therapy was going to

work.   The court noted:

                "So I just want everybody to understand,

           you know, my patience to let the therapy work

           and let [respondent] work through the therapy

           is going to be pretty short-lived.    So if I

           don't begin to see some real work on [respon-

           dent's] part to control these behaviors, I'm

           not going to stay here indefinitely and wait

           for somebody else to be a victim.    Not going

           to happen."

The court set the next status review for October 2007.

   D. Facts Pertaining to the October 3, 2007, Status Hearing

           The status-review-hearing documents filed in advance of

the October 3, 2007, hearing established the following.      Campbell

reported that progress was satisfactory.    Respondent denied any


                                - 7 -
deviant sexual thoughts during the quarter.   No evidence showed

inappropriate sexual behaviors.   The report also provided that of

the eight treatment goals, respondent received a rating of four

out of five (with five being the highest) for (1) motivation for

treatment, (2) making full disclosure of and taking full respon-

sibility for the sexual offenses, and (3) positive behavior in

the community.   Respondent received a rating of one out of five

for the goals of (1) identifying and understanding the offense

cycle, (2) developing a relapse-prevention plan, and (3) exhibit-

ing victim empathy.   Respondent received a three for the goal of

identifying thinking errors and a two for decreasing arousal to

deviant stimuli.

           At the status hearing, the trial court noted the

ratings respondent received on his goals.   The court observed

that while respondent had a long way to go, he had been attending

all counseling sessions and Campbell recommended further treat-

ment.   The court found that treatment would continue but that

things had to turn around because the court would not be con-

vinced that counseling was beneficial when half of the goals in

counseling were rated unsatisfactory.   The court set the next

status hearing for January 2, 2008, later continued to January 9,

2008.

              E. Facts Pertaining to the Anticipated
                  January 9, 2008, Status Hearing

           The status-review report filed in anticipation of the

January 2008 status hearing provided the following.    Campbell

rated respondent's treatment goals as follows: respondent re-

                               - 8 -
ceived a four on the goals of (1) motivation for treatment, (2)

full disclosure of and taking full responsibility for the sexual

offenses, and (3) positive behavior in the community.       Respondent

received a rating of three on the goals of (1) identifying

thinking errors, (2) decreasing arousal to deviant stimuli, and

(3) identifying and understanding the offense cycle.    Respondent

received a two on developing a relapse-prevention plan and a one

for exhibiting victim empathy.

            Campbell noted that respondent had difficulty express-

ing his feelings because (1) he learned the cultural rule that

real men do not express feelings other than anger; and (2) in

order to deal with conflict at home, he had learned to numb his

feelings because he was powerless to do anything about his

feelings.    Respondent had a lot of anger about his parents'

chronic conflicts.

            Campbell noted that respondent had been cooperative in

treatment except for his failure to keep a journal about his

feelings.    Respondent denied any deviant sexual fantasies for the

last five or six months.    Campbell believed respondent's medica-

tion (Zoloft) helped with that.    Campbell recommended continuing

with the present course of treatment.

            F. Facts Pertaining to the Petition To Revoke
                  Probation and the Detention Hearing

            On January 9, 2008, the date set for the status review,

the State filed a petition to revoke probation.    The State

alleged:

                 "The minor violated his probation in

                                 - 9 -
           that he has failed to successfully complete

           or comply with sex[-]offender treatment and

           counseling[.]   [S]pecifically[,] within the

           last few weeks he was found to have possessed

           in his bedroom various sexual aids and de-

           vices and admitted to his therapist/counselor

           that he did not use any of the interventions

           to prevent himself from engaging in sexual

           behavior as he had been taught to do through

           counseling and expressed to his counselor

           that he could not stop his need to engage in

           sexual behavior."

           That same day, the trial court held a detention hear-

ing.   Respondent's probation officer testified, and the court

admitted into evidence the letter Campbell sent to the probation

officer.   That letter, dated January 9, 2008, indicated that

Campbell confronted respondent about the items his mother found

on his bed--lotion, a toy used for anal stimulation, and a

women's magazine.   Respondent could not recount the feelings or

the thought process he had leading up to his decision to use

those items.   Respondent could only say, "I can't stop it."

Respondent also offered the excuse that he had not taken his

medication for a couple of days.

           Campbell's letter noted that at this point in treat-

ment, respondent had learned interventions to deal with those

urges and that he should have had time to check his thinking and


                               - 10 -
use interventions.   Campbell noted that respondent chose not to

use any interventions and his actions indicated that outpatient

treatment had not been effective.    Campbell recommended a "more

secure environment with more intensive therapy."

          The trial court found probable cause to believe that

respondent violated his probation and that detention was neces-

sary for the protection of a person or property of another.    In

her comments, the trial judge noted her concern from the begin-

ning about whether outpatient therapy was going to work and about

respondent being in the public school.    The judge believed that

because the offenses by respondent against his siblings took

place over a number of years, that indicated he had a very high

risk to reoffend.    The judge also stated that within less than a

year on probation, respondent had "two reoffenses" (referring to

the "inappropriate material" found early on and the more recent

incident).   The court believed this behavior was indicative of

"someone who then is ready to assault individuals."

             G. Facts Pertaining to the Hearing on the
                    Petition To Revoke Probation

          On January 23, 2008, the trial court held a hearing on

the petition to revoke probation.    Respondent's mother, Diana,

testified that on December 24, 2007, she found a "True Story"

magazine (a mostly print romance magazine), a bottle of lotion,

and a G.I. Joe missile toy on the floor of respondent's bedroom.

(Respondent apparently visited his parents' home at times when

his siblings were not there.)    The items were not normally in his

room and were the type of thing Diana had been instructed to look

                                - 11 -
for.    When confronted, respondent did not want to talk about it

and cried.    Diana reported the incident to Campbell on January 8,

2008.

            Campbell testified that he began counseling respondent

in January 2007.    Campbell conducted an evaluation to determine

the treatment plan.    The treatment plan included the following

goals: (1) taking full responsibility for his sexually abusive

behavior, (2) learning to identify and change thinking errors,

(3) learning to reduce deviant arousal patterns, (4) learning to

identify the offense cycle, (5) coming up with a relapse-preven-

tion plan to use techniques to get out of an offense cycle, and

(6) learning empathy for the victims.    However, Campbell testi-

fied that he and respondent had not yet worked on empathy because

respondent was not able to identify his feelings, a prerequisite

for empathy.

            Campbell testified that "[p]rogress was satisfactory a

lot of the times," meaning that he had no indication that treat-

ment was not effective.    In April 2007, an incident occurred

where respondent's grandmother's underwear, a tampon, and some

Vaseline were found in respondent's room.    Respondent indicated

he had used those items for masturbation fantasies and the tampon

for anal stimulation.    Campbell used that incident to discuss

with respondent that respondent needed to manage his thoughts and

feelings and to discuss relapse-prevention techniques.

            In early summer 2007, Campbell instructed respondent to

keep a journal of his feelings to help respondent learn to


                               - 12 -
identify his feelings and write them down to talk about in the

sessions.    Respondent never complied with that despite repeated

reminders.    Campbell testified that it was important for respon-

dent to keep the journal because respondent had problems identi-

fying and talking about his feelings, and sex offenders act on

their feelings.    According to Campbell, if respondent could not

identify his feelings, then a relapse-prevention plan was not

going to work for him.

            After Diana told Campbell what she had found, Campbell

spoke to respondent.    Respondent admitted he had used the maga-

zine as a stimulus and the missile toy for anal stimulation.

Campbell attempted to discuss with respondent the feelings he was

having around the time he was using those items.    Respondent was

not able to express what his feelings were at the time or what he

thought led up to him using those items.    "Basically, it came

down to, he was only able to say that he wasn't able to stop

himself."    Respondent told Campbell he had done it twice.

Campbell testified that the sexual behavior indicated that

respondent was "not able to manage his behavior, his thoughts,

his feelings, or behaviors, and had not been able to use any of

those techniques or interventions that we had talked about."

            On cross-examination, Campbell admitted that respon-

dent's verbal and language skills had tested at below average.

Because of this, Campbell expected treatment with respondent to

take longer than was typical--two to three years as opposed to

one to two years.


                               - 13 -
            Through counseling, Campbell determined that respon-

dent's "trigger emotion" appeared to be anger toward his parents.

Campbell agreed that the abuse of respondent's siblings appeared

to be "kind of a revenge thing."

            Campbell admitted on cross-examination that for most

people, masturbation was a normal process in one's sexual life.

On redirect, however, Campbell explained that masturbation was

not normal for respondent because the whole point of treatment

was to help respondent manage his behaviors, thoughts, and

feelings.    The danger, according to Campbell, was that it could

escalate.    At that point in treatment, respondent was not sup-

posed to masturbate, although Campbell admitted some conflict

among counselors existed on that issue.

            Campbell testified that his December 20, 2007, opinion

--that respondent's progress was satisfactory--had changed after

learning about respondent's most recent masturbation incident.

Campbell stated that because respondent could not explain the

thoughts and feelings that preceded the act, respondent was

essentially going to be starting over with counseling.    In

Campbell's opinion, respondent's progress was not acceptable.      In

fact, Campbell testified he had terminated respondent from

Campbell's counseling program.

            Upon examination by the trial court, Campbell testified

that respondent's purported failure to take his medication for a

couple of days might have had an effect on his ability to

control his actions and feelings.    Campbell also admitted that,


                               - 14 -
if respondent really did not take his medication, that would mean

respondent was not compliant with his treatment.      Campbell

recommended inpatient treatment, which would be more intensive

and would include daily sessions.

            Following the hearing, the trial court revoked respon-

dent's probation.    The court noted that the issue was not that

respondent masturbated.    Instead, the issue was that respondent

could not "open up and share in counseling."      Therapy could not

work if respondent could not express his feelings or how he felt

when the episodes overtake him.    The court noted that even if it

was normal to have sexual thoughts, respondent was reporting that

he was not having sexual thoughts.      The court concluded that

respondent had failed to make any progress toward his counseling

goals.

            Respondent's counsel moved to vacate the detention

order.    The trial court denied that motion.

          H. Facts Pertaining to the Motion To Reconsider
                    the Order Revoking Probation

            On February 25, 2008, respondent filed a motion to

reconsider the ruling revoking his probation.      Respondent argued

that he did not fail to complete or comply with sex-offender

treatment or counseling.    Specifically, respondent asserted that

based on his level of functioning (1) Campbell's counseling was

inappropriate and (2) counseling would take an extended period of

time.    Respondent also argued that because Campbell reported that

respondent's progress was satisfactory as of December 20, 2007,

the intervening event was insufficient to warrant termination of

                               - 15 -
probation.

            On February 25, 2008, at the dispositional hearing,

respondent's counsel sought to submit additional testimony from

Dr. Helen Appleton, a clinical psychologist, in support of his

motion to reconsider the order revoking probation.    The trial

court denied that request and denied the motion to reconsider the

order revoking probation.

           I. Facts Pertaining to the Dispositional Hearing

            On February 11, 2008, the probation office filed a

social-history report.    Documents attached to the social-history

report included the police report, the 2007 DCFS assessment,

school records, Campbell's progress reports, and Streight's 2006

evaluation.

            On February 25, 2008, the trial court held the

dispositional hearing.    The State presented no evidence in

aggravation.    In mitigation, respondent called Dr. Appleton to

testify.

            Dr. Appleton testified that in preparation of the

hearing, she was given approximately 700 pages of material--

school records, transcripts of prior hearings, and records from

Campbell.    However, she admitted she did not have the opportunity

to review everything.    She did not remember reviewing the social-

history report.    She also had some difficulty reading some of

Campbell's notes and did not always know what he meant or what he

was saying in those notes.    Dr. Appleton did not evaluate or meet

with respondent in person.


                                - 16 -
           Dr. Appleton believed three factors were important in

determining the appropriate disposition for respondent: (1)

whether respondent had an apparent severe emotional disturbance,

which it appeared that he did not; (2) whether respondent was

dangerous, which she believed he was not a danger to the commu-

nity because there were no sexual behaviors outside the family

and respondent had friends; and (3) respondent's amenability to

treatment, which she believed that he was.

           Dr. Appleton criticized Campbell's treatment for using

techniques appropriate for adults, as opposed to teenagers, and

for not helping respondent do a better job of expressing feel-

ings.   She based this on reading his notes, which she admitted

she had difficulty reading.    Dr. Appleton believed respondent

would fare well in developmentally appropriate, community-based

outpatient treatment.   If she evaluated respondent, she would

want to readminister J-SOAP-II, the standard test of risk for

juveniles.   She also testified about additional testing she would

perform, including additional intelligence testing and the

Minnesota Multiphasic Personality Inventory.

           Based on the information she had reviewed, Dr. Appleton

believed respondent was a good candidate for outpatient,

community-based treatment.    She believed DOJJ was particularly

ill-suited for respondent because of his low self-esteem, weak-

nesses in social skills, and below-average intelligence.    How-

ever, Dr. Appleton did not know where respondent would get

appropriate outpatient community counseling because Dr. Appleton


                               - 17 -
was not familiar with the area.

            Respondent's one-on-one aide at school, Jackie Gilson,

testified that respondent seemed fine having her as an aide.

Gilson never saw respondent act combative or show any sexual

behavior.    Gilson testified respondent had friends and was

respectful of the teachers.

            Sue Kirkham, respondent's special-education teacher and

case manager, testified that respondent was respectful to his

teachers.    She was not aware of any dangerous behavior by respon-

dent.   Respondent had difficulty staying on task with work at

school, but he understood what was required of him in his

special-education classes.

            The State recommended the trial court resentence

respondent to DOJJ where he could receive sex-offender treatment.

Respondent's counsel recommended developmentally appropriate

outpatient treatment or residential treatment not in DOJJ.

Respondent was given the opportunity to speak.    He stated that he

"tried to do stuff" but then broke down crying.

            The trial court resentenced respondent to an indetermi-

nate term in DOJJ and, in the written order, strongly recommended

respondent receive sex-offender treatment.    The court based the

disposition on the court's review of the social history, the

testimony, counsel's recommendations, respondent's statement, and

the seriousness of the charges.

            The trial court, although noting that Dr. Appleton had

been very thorough in other cases in which she had testified, had


                               - 18 -
not reviewed everything given to her in this case.    The court

concluded that Dr. Appleton's opinion in this should be "taken

with a large grain of salt" because Dr. Appleton admitted she had

neither read everything in the file nor understood everything she

read, such as Campbell's notes.   The court specifically found

that Dr. Appleton's suggestion that Campbell was unethical in

this case was unpersuasive.

          The trial court noted that respondent's attorney

categorized DOJJ as simply "corrections," but that DOJJ's purpose

included treatment.   The court found that residential placement

other than DOJJ was not available for lack of funding and the

lack of an appropriate facility nearby.

          As is relevant to this appeal, the trial court dis-

cussed J-SOAP-II in great detail.   The court noted that Dr.

Appleton indicated her awareness of J-SOAP-II but that some of

her testimony was in direct contravention to J-SOAP-II.    For

instance, the court found that Dr. Appleton

          "would make it appear that there's nothing to

          be concerned about in this case because we

          have offended family members, and nothing

          could be farther from what the J-SOAP[-II]

          indicates the important factors for the

          [c]ourt to look at in determining whether

          someone is likely to reoffend or not."

          The trial judge noted that she had some training and

was familiar with the assessment tools used in these cases,


                              - 19 -
including J-SOAP-II.    The trial court went through all of the

factors listed in J-SOAP-II.    When respondent's counsel asked the

judge if she was going to make the factors she looked at part of

the record, the judge responded that she was going to state them.

Counsel asserted that the judge was referring to something

outside the record.    The judge noted, however, that she was

referring to what was done and discussed by the attorneys with

Campbell during his evaluation and referred to by Dr. Appleton.

Respondent's counsel, however, informed the court he had looked

through Campbell's material where Campbell summarized the J-SOAP-

II factors, but counsel wanted the entire J-SOAP-II material the

judge was reviewing to be made part of the record.    The trial

judge stated that she read all the statements she considered into

the record verbatim.

 J. Facts Pertaining to the Motion To Reconsider the Disposition

           On March 24, 2008, respondent filed a motion to recon-

sider his sentence.    Respondent argued that the witnesses agreed

that respondent was not a danger to the public and that no

evidence or information suggested respondent was a danger to the

public.   According to respondent, the unchallenged evidence at

the disposition hearing clearly established that community-based

counseling was the best alternative.    Respondent further argued

that the education and counseling he would receive at DOJJ was

inferior to the education and counseling he was receiving in the

community.

           Following a hearing, the trial court denied the motion


                               - 20 -
to reconsider sentence.

            This appeal followed.

                            II. ANALYSIS

            On appeal, respondent argues (1) the trial court erred

by revoking respondent's probation because (a) the trial judge

was biased against probation from the outset as evidenced by her

comments and impatience throughout the case and (b) the record

established respondent's slow but satisfactory progress toward

treatment goals; and (2) the trial court erred by committing

respondent to DOJJ where (a) the trial judge relied on her review

and interpretation of judicial training material that she refused

to make part of the record, and (b) the disposition was against

the manifest weight of the evidence and fatally tainted by the

court's misuse of the J-SOAP-II materials that were not in the

record.

  A. Trial Court Did Not Err by Revoking Respondent's Probation

            Respondent argues the trial court erred by revoking his

probation.    Specifically, respondent argues that (1) the trial

judge was biased against probation from the outset as evidenced

by her comments and impatience and (2) the record established

respondent's slow but satisfactory progress toward treatment

goals.

            The State must prove a violation of probation by a

preponderance of the evidence.      In re Justin M.B., 204 Ill. 2d

120, 125, 787 N.E.2d 823, 826 (2003); 705 ILCS 405/5-720(3) (West

2008).    This court will not disturb a trial court's ruling on a


                               - 21 -
petition to revoke probation unless it is against the manifest

weight of the evidence.   In re N.W., 293 Ill. App. 3d 794, 799,

688 N.E.2d 855, 858-59 (1997).

          Respondent first asserts the trial court erred by

revoking his probation because the judge was biased against the

probation disposition from the start.    Respondent points to

several of the judge's comments, including (1) referring to the

masturbation incidents as "reoffenses" at the detention hearing;

(2) repeatedly questioning whether probation was the appropriate

disposition; (3) expressing concern about respondent attending

the public high school where only a door separated the high

school and middle school; and (4) stating that her patience to

let therapy work would be short-lived.

          Respondent never raised this issue in the trial court.

Therefore, the issue is forfeited.     See, e.g., People v. Thorn-

ton, 70 Ill. App. 3d 532, 533-34, 388 N.E.2d 923, 924 (1979)

(noting that the appellate court could find forfeited the defen-

dant's argument on appeal that the trial court was biased,

prejudiced, or acted improperly for failure to raise it in the

trial court, although the court did address the issue and found

no actual bias); People v. Nevitt, 135 Ill. 2d 423, 460, 553

N.E.2d 368, 383 (1990) (finding the defendant forfeited his claim

that a comment by the trial judge demonstrated the trial judge's

bias against him where the defendant raised it for the first time

before the supreme court).

          Moreover, even if this court addressed the issue on


                              - 22 -
appeal, we would find no error.   That the judge continued to

question whether probation was the appropriate disposition and

made it clear that she expected progress to justify the disposi-

tion was not inappropriate or indicative of bias.    See, e.g.,

People v. Bedell, 253 Ill. App. 3d 322, 335-36, 624 N.E.2d 1308,

1317 (1993) (finding "[a] defendant is not denied due process

simply because the trial court predetermined the defendant's

sentence, even before probation was revoked" where the trial

court told the defendant that if he did not successfully complete

probation, the court would sentence him to 10 years in the

penitentiary).

           The trial court's concerns have support in the record.

In fact, Streight's September 2006 evaluation noted that DCFS and

law enforcement recommended residential treatment.   Streight's

evaluation noted her belief that respondent could succeed in

outpatient treatment but that residential treatment might be

necessary if (1) respondent failed to make progress in outpatient

treatment and (2) if it became evident that respondent was not

gaining internal-control mechanisms.   The judge's repeated

expressions of her concern about the propriety of probation were

neither inappropriate nor indicative of actual bias.

           Although the trial judge did refer, at the detention

hearing, to respondent's masturbation episodes as "reoffenses,"

she did not refer to them as such at the probation-revocation

hearing.   Moreover, from the context of the judge's entire

comments at the probation-revocation hearing, the judge did not


                              - 23 -
believe respondent had reoffended but that he had engaged in

behavior that called into question the effectiveness and progress

of his counseling.

            Respondent also argues the trial court erred by revok-

ing his probation because the record established his slow but

satisfactory progress toward treatment goals.    We disagree.

            One of the conditions of probation was successful

completion of sex-offender treatment and counseling.    As of

December 20, 2007, Campbell believed respondent was making slow

but satisfactory progress.    However, after learning about the

December 24, 2007, masturbation incident, Campbell concluded that

counseling was not effective, terminated respondent's counseling,

and recommended more intensive counseling in a secure setting.

            Specifically, that incident called into doubt respon-

dent's veracity in counseling, such as whether he was having

sexual thoughts.   Moreover, Campbell had taught respondent

certain techniques to use to help avoid an incident such as had

occurred.   Respondent was not only unable to try to use any of

the techniques he had been taught, but he was unable to identify

his feelings before the incident in question.    According to

Campbell, if respondent could not identify the triggers, he would

be unlikely to be able to use the techniques he was taught by

Campbell.

            Respondent cites In re G.L.C., 74 Ill. App. 3d 411, 393

N.E.2d 113 (1979), arguing the testimony at the hearing was

insufficient to support revocation of probation.    In G.L.C., the


                               - 24 -
respondent was ordered to report daily to his probation officer.

G.L.C., 74 Ill. App. 3d at 412, 393 N.E.2d at 114.   This court

held that respondent's failure to report for three days between

May 1978 and August 1978 was an insufficient basis to revoke his

probation.   G.L.C., 74 Ill. App. 3d at 413, 393 N.E.2d at 114

(also finding that the evidence showed the respondent was making

progress with various services).

          Recently courts have held that substantial compliance

with a probation order is not sufficient and the failure to

comply with one condition may be sufficient to revoke probation.

See, e.g., People v. Bell, 219 Ill. App. 3d 264, 266, 579 N.E.2d

1154, 1156 (1991) (involving probation revocation for the failure

to comply with the public-service-employment requirement, com-

plete a drug-treatment program, and the willful failure to pay

the probation fee).   In any event, respondent's failure to make

any progress during counseling is not the equivalent of missing

three days of daily reporting to one's probation officer.

Counseling was a substantial part--if not the most critical part-

-of respondent's probation.   His failure to make progress--which

included not taking his medication, not keeping a journal, being

unable to express his feelings so that he could apply what he

learned in counseling, being unable to identify the feelings that

preceded the December 2007 masturbation incident, and being

unable to apply the relapse-prevention techniques to try to avoid

the December 2007 masturbation incident--resulted in Campbell

terminating respondent's counseling.   Therefore, respondent did


                              - 25 -
not complete sex-offender treatment and counseling and, based on

Campbell's testimony, was unlikely to be able to do so in an

outpatient setting.    The trial court's conclusion that respondent

violated a condition of probation was not against the manifest

weight of the evidence.    See, e.g., In re Jessie B., 327 Ill.

App. 3d 1084, 1090, 765 N.E.2d 508, 513 (2002) (finding that the

trial court's revocation of probation was not against the mani-

fest weight of the evidence where the respondent failed to comply

with and successfully complete the first phase of a three-phase

program).

         B. Respondent Is Entitled to a New Dispositional
        Hearing Because the Trial Court's Personal Use of
             J-SOAP-II To Assess Respondent's Risk of
      Offending Improperly Tainted Respondent's Disposition

            Respondent next argues the trial court erred by commit-

ting him to DOJJ where (1) the judge relied on her review and

interpretation of judicial training material that she refused to

make part of the record and (2) the disposition was against the

manifest weight of the evidence and fatally tainted by the

court's misuse of the J-SOAP-II materials that were not in the

record.    We agree.

            At a sentencing hearing in a delinquency case, the

trial court must determine whether it is in the best interests of

the minor and the public that the minor be made a ward of the

court.    705 ILCS 405/5-705(1) (West 2008).   If so, the court must

determine the "proper disposition best serving the interests of

the minor and the public."    705 ILCS 405/5-705(1) (West 2008).

In making that determination, the court may consider all helpful

                               - 26 -
evidence, including oral and written reports.   705 ILCS 405/5-

705(1) (West 2008).   A court may not order the minor committed to

DOJJ until a written social-investigation report is completed and

considered by the court.   705 ILCS 405/5-705(1) (West 2008).    The

trial court's decision following a dispositional hearing "will be

reversed only if the findings of fact are against the manifest

weight of the evidence or the court committed an abuse of discre-

tion by selecting an inappropriate dispositional order."    In re

J.W., 386 Ill. App. 3d 847, 856, 898 N.E.2d 803, 811 (2008).

          A trial court, when determining the appropriate dispo-

sition, may consider all helpful evidence, including oral and

written reports.   705 ILCS 405/5-705(1) (West 2008).   However, in

this case, the J-SOAP-II manual was not made part of the record.

The parties did not submit the J-SOAP-II manual as evidence.     Dr.

Appleton mentioned J-SOAP-II only in the context of wanting to

readminister the test, and Campbell did not attach a copy of the

manual to his April 2007 evaluation.   Moreover, in his April 2007

evaluation, Campbell indicated that he administered J-SOAP-II,

stated respondent's overall score of respondent's risk, and noted

only those risk items he believed applied to respondent.   The

trial judge could not have been using Campbell's list because she

read all 28 items from J-SOAP-II.

          Nor did the trial court sufficiently make J-SOAP-II

part of the record.   The trial judge only read a brief portion of

the description of the checklist.

          This court can take judicial notice of the J-SOAP-II


                              - 27 -
manual, which is available from the United States Department of

Justice's office of juvenile justice and delinquency prevention.

See, e.g., Dietz v. Property Tax Appeal Board, 191 Ill. App. 3d

468, 477, 547 N.E.2d 1367, 1372 (1989) (taking judicial notice of

the Illinois Real Property Appraisal Manual, which was issued by

the Department of Revenue as a public record).    That manual

provides that the "stakes are often very high" when assessing

risk with juvenile offenders and that "[i]t is imperative that

clinicians who assess the risk of adolescent offending be very

knowledgeable of the challenges involved in assessing this

population."   R. Prentky & S. Righthand, Juvenile Sex Offender

Assessment Protocol-II (J-SOAP-II) Manual, at 1 (2003) (hereinaf-

ter R. Prentky & S. Righthand, J-SOAP-II Manual).     The manual

further provides as follows:

          "Prior to using J-SOAP-II, users should have

          training and experience in assessing juve-

          niles who commit sexual offenses and risk

          assessment in general, particularly as it

          pertains to juvenile sex offending.    In addi-

          tion, prior to using J-SOAP-II, users should

          read the manual and be familiar with its

          contents.   Before using the scale in any

          professional capacity, users should complete

          several practice cases and compare their

          scores with others who have scored the same

          case to identify and resolve any scoring


                               - 28 -
           difficulties.   It is also recommended that J-

           SOAP-II users periodically consult with each

           other about their scoring and stay current

           with the evolving literature relevant for

           assessing juveniles who sexually offend."    R.

           Prentky & S. Righthand, J-SOAP-II Manual, at

           1.

"Decisions about reoffending should not be based exclusively on

the results from J-SOAP-II.    J-SOAP-II should always be used as

part of a comprehensive risk assessment."    R. Prentky & S.

Righthand, J-SOAP-II Manual, at 1.

           Here, the trial court's personal use of J-SOAP-II

tainted respondent's disposition.    The court sua sponte, at the

close of evidence, conducted her own risk assessment.     The use of

tools like J-SOAP-II are important in determining an appropriate

juvenile sentence.   Trial judges should be commended for partici-

pating in training relating to application and interpretation of

juvenile testing methods so they can properly understand J-SOAP-

II.   However, while courts should be familiar with J-SOAP-II, the

actual assessment should be done by trained and knowledgeable

clinicians.

           The problem here is evidenced by at least two instances

when the trial judge attempted to apply the checklist but consid-

ered factors not contained in the checklist.    For example, item 2

of the checklist pertains to the number of sexual-abuse victims

and assigns a higher score for more victims.    R. Prentky & S.


                               - 29 -
Righthand, J-SOAP-II Manual, at 12.     The court stated, "when the

victims are family members, the J-SOAP indicates that is also to

be taken into consideration and additional points awarded, as far

as recidivism is concerned."   However, J-SOAP-II manual does not

make any reference to the status of the victim as a family

member.   Similarly, item 13, relating to juvenile antisocial

behavior between ages 10 and 17, directs the assessor to score

for the following:

           "nonsexual delinquent behavior such as (1)

           vandalism and destruction to property; (2)

           malicious mischief, disorderly conduct, va-

           grancy, habitual truancy; (3) fighting and

           physical violence; (4) owning or carrying a

           weapon (other than for sport and hunting);

           (5) theft, robbery, burglary; and (6) motor

           vehicle-related (reckless driving, operating

           to endanger, operating under the influence)."

           R. Prentky & S. Righthand, J-SOAP-II Manual,

           at 18.

However, when the trial judge discussed this item, she mentioned

that respondent had friends but had some problems forming social

relationships with peers.

           In this case, the trial court's personal use of J-SOAP-

II to assess respondent's risk of offending was improper and

tainted respondent's dispositional hearing.    Respondent is

therefore entitled to a new dispositional hearing.


                               - 30 -
                         III. CONCLUSION

          For the reasons stated, we affirm the trial court's

order revoking respondent's probation, reverse the court's

dispositional order, and remand for a new dispositional hearing.

          Affirmed in part and reversed in part; cause remanded.

          TURNER, J., concurs.

          POPE, J., concurs in part and dissents in part.




                             - 31 -
          JUSTICE POPE, specially concurring in part and dissent-

ing in part:

          I concur in the portion of the majority's decision with

respect to the trial court's use of J-SOAP-II.    For the following

reasons, I respectfully dissent from the majority's holding on

the issue of the trial court's revocation of respondent's proba-

tion.

          As the majority discusses, the State must prove a

violation of probation by a preponderance of the evidence.

Justin M.B., 204 Ill. 2d at 125, 787 N.E.2d at 826.    The petition

to revoke probation stated respondent failed to

               "complete or comply with sex[-]offender

          treatment, specifically within the past few

          weeks he was found to have possessed in his

          bedroom various sexual aids and devices and

          admitted to his therapist/counselor that he

          did not use any appropriate interventions to

          prevent himself from engaging in sexual be-

          havior as he had been taught to do through

          counseling and expressed to his counselor

          that he could not stop his need to engage in

          sexual behavior."

I would reverse the trial court's decision because, in essence,

the petition alleged respondent violated his probation by engag-

ing in masturbatory conduct.   The evidence at the hearing estab-

lished the revocation was based on this 15-year-old boy's


                               - 32 -
masturbatory conduct.    His "sexual behavior" was with himself--

not any third-party victim.   Calling the minor's masturbation a

failure to complete or comply with sex-offender treatment does

not make it so.

           The record supports the conclusion respondent was

making slow but steady progress between April 2007 and January

2008.   As the majority acknowledges, all parties, including the

trial court, understood respondent's outpatient treatment would

take a significant commitment of time and effort because of

respondent's reduced intellectual capacity.     Campbell even

indicated to respondent's parents that respondent would be in

treatment for the entire five years of probation.     Thus, revoca-

tion of the minor's probation after only seven months, without

any clear violations, reflects a lack of patience with respect to

respondent's progress.

           In his April 16, 2007, letter to the State, just one

month after probation was imposed, Campbell wrote respondent

"initially had trouble grasping the concepts of distorted think-

ing but is beginning to understand how he used it in his of-

fenses.   Treatment with this client will be slow and lengthy due

not only to the content and to issues addressed, but also due to

his limited intellectual capacity."     Campbell acknowledged

respondent's motivating factors for the abuse related to his

parents' volatile relationship and "point in the direction of a

power/control offense with elements of revenge rather than purely

sexual urges to have sexual contact with younger children.      ***


                               - 33 -
It may be a little more encouraging that the client needs to

learn coping skills for stress and problem behaviors, rather than

trying to change deviant sexual arousal patterns."

           In the April 24, 2007, progress report from Campbell,

he stated "[respondent] appears to be genuine in his desire for

treatment.    He is presently taking the antidepressant medication

Zoloft which, he states, has significantly reduced the frequency

of sexual thoughts.   ***   Treatment with this client will be slow

and lengthy due not only to the content and to issues addressed,

but also due to his limited intellectual capacity."

           In the July 3, 2007, progress report, Campbell acknowl-

edged the first masturbation incident when respondent's grand-

mother saw him masturbating through his open bedroom door, but

Campbell did not expound on how he addressed the incident with

respondent.   Campbell states "[respondent] has identified some of

the thinking errors that he used in his offense.    He also identi-

fied depression as a trigger for his fantasies/offenses.    ***

Progress is slow but he seems committed to resolving his prob-

lems.   He pays attention and stays on topic.   No new issues or

concerns."

           At the August 1, 2007, hearing, the trial court stated,

based on its review of Campbell's report, "[p]rogress is slow"

and "not much progress" had been made.   Speaking to respondent,

the court said "why you would engage in [masturbation], in the

viewing and presence of your grandmother, I really can't guess."

As the majority acknowledges, the court posed the issue of


                               - 34 -
masturbation in terms of respondent engaging in the behavior in

the presence of his grandmother, which could indicate to a 15-

year-old male the behavior is acceptable in private.

           Campbell states in his September 17, 2007, report

"treatment has been focused on thinking errors.     He seems to

understand the concept and identify some of the thinking errors

he used before, during, and after his offense.     Also covered this

quarter were anger management skills and identifying feelings.

Progress has been satisfactory.   He denies having *** had any

deviant sexual thoughts during the quarter and there has been no

evidence of any inappropriate sexual behaviors.     ***    No issues

or concerns.   Continue treatment."    (Emphasis added.)   While

Campbell acknowledges no deviant sexual thoughts, he does not

report on any healthy or appropriate sexual thoughts or behav-

iors.   In October 2007, Campbell reported no violations.

           In his November 27, 2007, letter to respondent's

probation officer, Campbell states respondent is "in the process

of developing his offense cycle so that he can map out the

thoughts, feelings, and behaviors that led to his offending.       ***

[Respondent] remains cooperative with treatment except for

journaling his feelings which he seems to avoid wanting to do.

***   Overall, [respondent] is making satisfactory progress."

           In his December 20, 2007, progress report, Campbell

indicates respondent attended all sessions.     Respondent had

difficulty expressing feelings due to a couple of identifiable

factors relating to the learned rule that real men do not express


                              - 35 -
feelings and his coping mechanism of numbing emotions.     Campbell

indicates respondent has expressed negative emotions relating to

how his father has treated him and his parents' ongoing con-

flicts.   Campbell states respondent is learning intervention

techniques to "get out of his cycle."

           Despite the petition specifically stating the masturba-

tion incident was the reason for revocation, the majority and the

trial court refer to respondent's failure to make progress in

counseling as the grounds for the probation revocation.    At the

revocation hearing, the court stated:

           "It's not just a matter that he masturbated

           when the doctor said that wasn't appropriate

           behavior at that point, but because they're

           not making any progress in therapy because he

           cannot, or will not, express his feelings and

           how these things came about.   That's why

           we're not making any progress in therapy.

           And so if the only *** offer [of] proof is

           *** to say that not masturbating or mastur-

           bating is or is not appropriate behavior

           under this kind of therapy situation, that

           doesn't go to the heart of this matter."

           If, despite the language in the petition, the trial

court's revocation was based on respondent's lack of progress

instead of the masturbation incident, this finding is not sup-

ported by a preponderance of the evidence.    None of Campbell's


                              - 36 -
progress reports indicate treatment was not working, and Campbell

consistently reported respondent made slow but steady progress.

            The treatment plan implemented by Campbell lists the

following goals:    (1) client exhibits motivation for treatment,

(2) client fully discloses and takes full responsibility for

sexual offenses, (3) client identifies thinking errors, (4)

client decreases arousal to deviant stimuli, (5) client identi-

fies and understand offense cycle, (6) client develops relapse

prevention plan, (7) client exhibits victim empathy, and (8)

client's behavior in the community is positive.    Respondent's

treatment plan does not indicate ridding respondent of any sexual

impulse or outlet is part of the treatment or an ultimate goal of

the plan.

            In accordance with the treatment goals, respondent (1)

attended counseling sessions and, according to Campbell, exhib-

ited a commitment to resolving his problems; (2) described the

abuse he inflicted and consistently took responsibility for the

abuse; (3) identified some of the thinking errors he used before,

during, and after the offense; (4) decreased arousal to deviant

stimuli, evidenced by his use of a primarily text-filled magazine

that did not depict pictures of adults or children; (5) was

learning how to "get out of his cycle" by incorporating interven-

tion methods, which according to material provided by Campbell,

included masturbation; (6) did not relapse in his deviant sexual

behavior but used a relapse-prevention technique, masturbation,

which is the subject of the revocation; (7) had not yet addressed


                               - 37 -
victim-empathy issues, which Campbell testified would be ad-

dressed later in treatment; and (8) exhibited positive behavior

in the community evidenced by his appropriate behavior around

peers and school staff and his participation in the Future

Farmers of America, an extracurricular activity offered at his

school.   Numerically rating respondent's progress toward his

treatment goals, Campbell increased respondent's ratings in the

areas of decreasing arousal to deviant stimuli, identifying the

offense cycle, and developing a relapse plan.    Campbell did not

lower respondent's rating for any of the eight goals.

           If the masturbation incident was the basis for the

trial court's decision, or even a factor in the court's decision,

this too was improper, as no evidence was presented to show

Campbell and the court prohibited respondent from masturbating as

a term of his probation.   In fact, the record does not indicate

any effort by the court or Campbell to distinguish between

healthy and deviant sexual thoughts and behaviors.   On the

contrary, Campbell testified that as of his December 20 status

report, respondent was beginning the process of developing

interventions to get out of the offense cycle.   As part of the

intervention therapy, Campbell provided respondent with reading

material that specifically identified masturbation as an appro-

priate intervention technique.   Additionally, only months prior

to the revocation, the court indicated to respondent masturbation

in front of his grandmother was inappropriate, leaving open to

interpretation whether masturbating in private was an appropriate


                              - 38 -
outlet.

           The trial court and Campbell placed a strong emphasis

on respondent's failure to articulate precisely why he mastur-

bated.    Relying on a 15-year-old male's inability to explain the

reasons he masturbated as a basis for revocation seems quite

faulty.   Respondent's intellectual limitations and difficulty

expressing himself verbally would contribute to his difficulty in

explaining the behavior.    Campbell had previously indicated he

allowed respondent to avoid the journaling exercise because he

knew identifying and writing about his feelings was especially

difficult for respondent.    Campbell testified respondent "had a

very difficult time expressing feelings.    It took a lot of

prompting on my part to get him to talk about his anger at his

parents, for instance.   And it was very difficult to get him to

speak of feelings in any other context."    Campbell went on to

testify respondent's difficulty with communicating would apply to

the feelings he experienced when he masturbated.    Respondent

presumably experienced some humiliation over being confronted by

his parents for masturbating.    In addition, his therapist asking

him to explain why he masturbated could also contribute to his

difficulty in discussing the incident.

           At the revocation hearing, when asked if respondent's

engaging in masturbation was normal, Campbell replied "it would-

n't be normal.   The desire might continue to be normal, but the

behavior would be prohibited.    You know, the whole point of

treatment was to help him learn to manage his behaviors and his


                                - 39 -
thoughts and his feelings that went before the behaviors."

Campbell's testimony and his reports illustrate a deficiency on

the issue of deviant versus healthy sexual behaviors.   He does

not clarify whether "behavior" refers to the abuse or to any and

all sexual behavior.   Campbell does not say he informed the

minor, as part of his counseling and treatment, that masturbation

was in fact prohibited.   As Campbell pointed out in his April 16,

2007, letter to the State, respondent's abuse related to anger

and coping issues rather than a desire to molest children.     If

treatment focused on eliminating deviant sexual thoughts and

preventing acting on those thoughts, and respondent had abstained

from deviant sexual behavior, the treatment was working.

          At the same hearing, Campbell explained the letter he

sent to respondent's probation officer regarding the second

masturbation incident was not meant to indicate respondent was a

danger to others.   Campbell testified "[t]here was no direct

evidence that he was a danger to others.   There was no indication

he had been thinking about victimizing anyone or any indication

that he had thought about that, no."   The State also asked

Campbell, "with regards to intervention techniques and relapse

prevention and distraction techniques, what does his engaging in

this kind of sexual behavior tell you about the success of his

treatment and how compliant he is with treatment?"   Campbell

responded "it indicates to me that he was not able to manage his

behavior, his thoughts, feelings, or behaviors, and had not been

able to use any of those techniques or interventions that we had


                              - 40 -
talked about."   The State's witness seems to equate the 15-year-

old minor's masturbation with noncompliance with treatment.

However, by masturbating, respondent was engaging in an interven-

tion technique, the use of which was an integral part of his

treatment.   For this, his probation was revoked.

          At the conclusion of the presentation of evidence at

the revocation hearing, the trial court stated:

                 "[h]ow does the counselor address these

          problems if [respondent] will not be honest

          and will not share this information in coun-

          seling?   And that's why it isn't successful.

          And that's why I find that the State has

          proved by a preponderance of the evidence

          that the minor has not followed his order of

          probation and his probation should be re-

          voked."

The State's burden was to prove by a preponderance of the evi-

dence the allegations in the petition to revoke.    Those allega-

tions stated respondent violated his probation by masturbating.

The trial court found respondent violated his probation by not

being honest (in the court's opinion) and sharing information

with his counselor, something entirely different than alleged in

the petition.

          In summary, regardless of how the trial court presented

its reasons for revoking probation, it was in error because the

preponderance of the evidence does not support the finding that


                               - 41 -
treatment was unsuccessful.   Campbell continued with respondent's

treatment for several months after the first masturbation epi-

sode, giving him satisfactory reports.     Yet following the second

episode, Campbell determined all of the treatment up to that

point had failed and he would be starting from square one if he

continued working with respondent.     Masturbation was never

clearly prohibited as part of his probation (nor do I suggest

such a prohibition would have been appropriate), and Campbell

apparently failed to distinguish between healthy and deviant

sexual thoughts and behaviors.

          Further, respondent consistently attended and partici-

pated in counseling, showed no signs of relapse or reoffending,

and made positive progress toward his treatment goals.     Nothing

indicated he used any sexually deviant materials for arousal, and

the apparent inconsistencies in Campbell's approach to treatment

understandably left respondent believing masturbation in private

might be an acceptable activity.   Respondent demonstrated a

below-average ability to verbalize or commit to writing his

thoughts and feelings, but made an effort to communicate with

Campbell, prompting Campbell to overlook respondent's failure to

comply with the journaling exercise.     Overall, respondent's case

illustrates the slow and tedious road to rehabilitation posed by

juvenile outpatient treatment.   A review of the record makes

clear the trial judge reluctantly agreed to the originally

negotiated disposition of probation.     This is understandable,

given the serious nature of the minor's offenses.    However, once


                              - 42 -
the minor was placed on probation, he attended school, had a good

relationship with his school aide, attended all of his counseling

sessions, and did not reoffend.   Viewing the evidence in the

light most favorable to the State, I cannot find it proved, even

by a preponderance of the evidence, the minor violated his

probation.   Therefore, I respectfully dissent.




                              - 43 -
