                         No. 3--08--0529
      (Consolidated with Nos. 3--08--0534 and 3--08--0535)
_________________________________________________________________
Filed March 18, 2010
                              IN THE

                    APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                              A.D., 2010

In re C.H., L.H., and W.H.,     ) Appeal from the Circuit Court
                                ) of the 10th Judicial Circuit,
     Minors                     ) Tazewell County, Illinois,
                                )
(The People of the State of     )
Illinois,                       )
                                )
     Petitioner-Appellee,       ) Nos. 06--JA--76, 06--JA--77,
                                )       and 06--JA--78
     v.                         )
                                )
Leah H.,                        ) Honorable
                                ) Richard D. McCoy,
     Respondent-Appellant).     ) Judge, Presiding.
_________________________________________________________________

     JUSTICE O’BRIEN delivered the opinion of the court:
_________________________________________________________________


     Following a permanency review hearing, the court found the

respondent, Leah H., unfit to care for her children, C.H., L.H.,

and W.H.   The respondent appeals, arguing, among other things,

that the court erred when it admitted recordings of her telephone

conversations.   We reverse and remand.

                                 FACTS

     On August 29, 2006, the State filed separate but identical

petitions alleging W.H., a male born February 17, 1998; C.H., a

male born September 2, 2001; and L.H., a female born October 15,
2004, were neglected due to an injurious environment (705 ILCS

405/2--3(1)(b) (West 2006)).   In the petitions, the State alleged

that the respondent and William H., the minors' father,: (1) had

a history of unresolved domestic violence issues; (2) had

previously been involved in a juvenile case; and (3) continued to

exhibit instability and domestic violence issues.

     The respondent filed an answer stipulating to the

allegations in the neglect petition.   Following an adjudicatory

hearing, the court found the minors were neglected based on the

respondent's stipulation.

     The court held the initial dispositional hearing on

December 22, 2006.   The court found that William was an unfit

parent and that the respondent was a fit parent, and it placed

custody and guardianship of the children with the respondent.

The court ordered the respondent to complete, inter alia, the

following tasks: (1) parenting classes; (2) domestic violence

classes; (3) counseling to address personal issues; (4) random

drug and alcohol tests; and (5) maintain stable housing and

income.

     On May 10, 2007, the State filed a motion to award the

Department of Children and Family Services (DCFS) guardianship of

the children and to find the respondent unfit.   The State

alleged, among other things, that the respondent generally failed

to complete her service plan tasks or show measurable progress.


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     The record shows that the court held permanency review

hearings in June and December of 2007.    In preparation for these

hearings, DCFS caseworker Vicky Hoffman filed permanency review

reports that generally showed, among other things, that the

respondent had not made measurable progress on her service plan

tasks.    Thus, at each of these hearings, the court determined

that the respondent's fitness was "reserved."

     In preparation for the next permanency review hearing,

Hoffman filed a report on June 26, 2008.    Hoffman indicated that

the respondent completed parenting and domestic violence classes

and was consistently participating in counseling.    Further, from

January through May 2008, the respondent called on 102 of 104

possible testing days to see whether she needed to perform a

random drug test.    Hoffman also disclosed that the respondent had

been charged with: (1) disorderly conduct; (2) harassment; and

(3) stalking, stemming from phone calls she made to Stephanie R.,

William's girlfriend.

     Hoffman also filed an addendum to the permanency review

report.    It showed that the respondent was "frustrated that

[William did] not give her money for the care of his children"

and was resentful that William's relationship with Stephanie was

"at the expense[] of her children."    The respondent allowed

Hoffman "to listen to a recorded phone call with [William] in

which he was verbally abusive towards [the respondent] by means


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of cursing, calling her derogatory and vulgar names, [and]

threatening her with losing her children and going to jail."

     At the June 28, 2008, permanency review hearing, the State

and guardian ad litem recommended that the respondent be

adjudicated an unfit parent.   Hoffman, however, felt that after

years of involvement, the respondent had not shown substantial

progress but had done just enough to maintain her fitness.

     The State informed the court that the respondent had made

"lengthy, ranting, [and] derogatory" phone calls to Stephanie and

that Hoffman informed them that the children could be heard in

the background during "these rants."   The court stated it was not

concerned about the telephone calls unless the children were

present when they were made, but that in "a couple of these cases

where [the court] had people who [were] so vulgar in front of

kids that [the court] just remove[d] the kids from them."    The

court thus asked Hoffman whether she had information that the

respondent engaged in "these vulgar -- either conversations or

message[s] *** where the kids could hear her," and she answered

in the affirmative.   The court recessed the hearing to obtain a

recording of these calls.   Before it did, the respondent stated

that "[she] was in [her] room with the door shut when [she] was

talking to [William]."

     The court allowed the respondent to leave the courtroom

while the tapes were played.   Before she left, the respondent


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reiterated that she was in her room with the door closed during

the conversations and that the children came into her room.    The

court played the tapes, which consisted of 11 phone messages and

conversations of either only respondent speaking or the

respondent and Stephanie speaking.   In general, the conversations

showed the respondent's frustration because Stephanie refused to

give the telephone to William so the respondent could speak to

him about their children.   During the calls, the respondent was

upset and used offensive and, at times, vulgar and threatening

language.   However, the calls also showed that William was not

paying the respondent child support and that she was experiencing

car trouble and needed assistance from him to be able to provide

the children with a safe and reliable means of transportation.

The tapes also showed that a series of calls occurred around 5

a.m. during which the respondent sounded intoxicated.     Further,

in one call, a child could momentarily be heard in the

background.   When the child walked in the room, the respondent

stopped speaking on the telephone and told the child to leave the

room.

     After hearing the tapes, the court found that the respondent

was an unfit parent.   The court found that during some

conversations, the respondent was "drunk, high or psychotic" and

that "in at least three of these conversations, [the respondent

was] out of control exhibiting instability."   The court explained


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that it based the unfitness finding on the respondent's conduct

toward the father and Stephanie and because during at least one

conversation the children were present.    The court also restored

William's fitness and gave him custody of the minors.    The

respondent appealed.

                               ANALYSIS

     The respondent contends that the court erred when it

admitted recordings of the telephone conversations and messages

into evidence at the June 28, 2008, permanency review hearing.

     Section 2--28 of the Juvenile Court Act of 1987 (Act)

governs court proceedings that review the original dispositional

order, also known as permanency review hearings.    705 ILCS 405/2-

-28 (West 2006).   Hearings pursuant to section 2--28 "are simply

further dispositional hearings, conducted in accordance with

section 2--22(1) of the Act, which governs how dispositional

hearings are to be held."     In re S.M., 223 Ill. App. 3d 543, 547,

585 N.E.2d 641, 644 (1992).    Thus, the evidentiary rules that

apply to the dispositional hearing also apply to subsequent

permanency review hearings.     S.M., 223 Ill. App. 3d 543, 585

N.E.2d 641.

     The legislature gives trial courts wide latitude in

considering evidence at the dispositional stage of juvenile

wardship proceedings.    In re White, 103 Ill. App. 3d 105, 429

N.E.2d 1383 (1982).    Specifically, "[a]ll evidence helpful in


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determining [whether it is in the minor's best interest to be

made a ward of the court] 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."   705 ILCS 405/2--

22(1) (West 2006).   Thus, at a dispositional hearing, it is

within the trial court's discretion to admit and consider

evidence that is helpful and relevant to the court's

determination of a proper disposition.   See White, 103 Ill. App.

3d 105, 429 N.E.2d 1383.

     However, even the most relevant evidence must be properly

admitted in order to be considered by a trial court.   Belfield v.

Coop, 8 Ill. 2d 293, 134 N.E.2d 249 (1956).   "It is well

established in Illinois that sound recordings, which are

otherwise competent, material and relevant, are [admissible into]

evidence if a proper foundation has been established to assure

the authenticity and reliability of the recordings."   People v.

Melchor, 136 Ill. App. 3d 708, 711, 483 N.E.2d 971, 974 (1985).

A party lays a proper foundation when a participant to the

conversation or a person who heard the conversation while it was

taking place identifies the voices of the people in the

conversation and testifies that the tape accurately portrays the

conversation.   People v. Cochran, 174 Ill. App. 3d 208, 528

N.E.2d 253 (1988).   Further, in order to lay a proper foundation

for a sound recording, the defendant may not allege the existence


                                 7
of any changes or deletions in the recording.    People v. Johnson,

122 Ill. App. 3d 532, 461 N.E.2d 585 (1984).

     The admissibility of evidence is within the sound discretion

of the trial court.    In re Kenneth D., 364 Ill. App. 3d 797, 847

N.E.2d 544 (2006).    A reviewing court will not disturb

evidentiary determinations absent a clear abuse of that

discretion.   In re A.W., 231 Ill. 2d 241, 897 N.E.2d 733 (2008).

     Our review of the record reveals that the recordings

purported to be of the respondent were not properly admitted by

the trial court because they lacked a proper foundation.    Thus,

the court abused its discretion in admitting them.

     Specifically, neither the respondent nor anyone else

testified as to whose voices could be heard on the tapes.    More

importantly, no one testified whether the voices of the minors

were the voices of the instant minor children.    Additionally, the

court did not hear any testimony regarding whether the tapes were

altered or if they accurately portrayed the conversations.

     We acknowledge that the respondent admitted to calling

William.   However, she left the courtroom before the tapes were

played, so her admission to making some calls does not

sufficiently authenticate the recordings played at the hearing.

     In short, after it learned of the existence of some

telephone calls between the respondent, William, and Stephanie,

the court ordered the State to produce the tapes and play them in


                                  8
open court.   In doing so, however, neither side laid a foundation

to authenticate the tapes.   As such, we conclude the tapes were

inadmissible.

     Furthermore, it appears that the trial court relied solely

on the inadmissible tapes to find the respondent unfit.   Our

review of the report of proceedings does not show that the court

made any oral pronouncements that show it would have ruled in the

same manner had it not heard the inadmissible tapes.   Thus, the

admission of the inadmissible tapes was not harmless error.     See

In re Marriage of Almquist, 299 Ill. App. 3d 732, 704 N.E.2d 68

(1998) (court noted the general principle that the admission of

inadmissible evidence is harmless if the State could meet its

burden of proof with evidence that was properly admitted).

     Because we have determined the court erroneously admitted

the recordings, we need not reach the remaining issues presented.

We note in passing that if we were to reach the issue of whether

the respondent's counsel was ineffective for failing to object to

the admission of the inadmissible tapes, we would find that the

counsel's representation would meet both prongs of Strickland v.

Washington, 466 U.S. 668, 80 L. Ed. 2d 647, 104 S. Ct. 2052

(1984).   Specifically, counsel's conduct fell below an objective

standard of reasonableness because he failed to object to

inadmissible evidence.   We believe there was no sound trial

strategy for failing to authenticate the tapes before they were


                                 9
played in open court.    Additionally, counsel's deficiency

prejudiced the respondent because the record shows that the court

relied solely on the inadmissible tapes to determine the

respondent was an unfit parent.

     Based on the foregoing, we reverse the determination of the

trial court regarding the admission of the recordings, and we

remand the cause for further proceedings consistent with this

opinion.

                              CONCLUSION

     The judgment of the circuit court of Tazewell County is

reversed and remanded.

     Reversed and remanded.

     LYTTON, J., concurs.

     PRESIDING JUSTICE HOLDRIDGE, dissenting:

     The majority holds that the trial court abused its

discretion in admitting the recordings at issue because they

lacked a proper foundation.    The record clearly shows, however,

that no objection was made at hearing to the lack of foundation.

Thus the issue of proper evidentiary foundation was waived.

People v. DeLuna, 334 Ill. App. 3d 1, 19 (2002).    A review of the

record shows that all parties acknowledged the identities of the

individuals who were heard on the tape.    In point of fact, no

party challenged the admissibility of the recordings due to lack

of a proper foundation.     Without an objection to foundation, the


                                  10
trial court was within its discretion to find that the recordings

were admissible.    Greig v. Griffel, 49 Ill. App. 3d 829, 841

(1977) (failure to object to lack of foundation waives all

objections to admissibility).

     Moreover, not only were the recordings admissible, they were

relevant.    It was undisputed that the respondent had pending

criminal charges stemming from the phone calls she made to

Stephanie.   The record shows that a child was present and could

momentarily be heard during one of those calls.     Further, as the

trial court determined, the respondent sounded intoxicated during

a series of calls made in the early morning hours.    Thus, the

respondent’s conduct during these calls showed signs of an

inability to handle her anger, as well as alcohol or drug use to

the point of intoxication.    This conduct was relevant to the

respondent’s fitness to be a parent.    Because the recordings

offered evidence that was helpful and relevant to the

respondent’s fitness to parent her children, I would find that

the court did not abuse its discretion by admitting the recorded

telephone calls and messages.    I would affirm the ruling of the

trial court.    I therefore respectfully dissent.




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