                         No. 3--06--0370
Filed May 16, 2007.
_________________________________________________________________

                             IN THE

                   APPELLATE COURT OF ILLINOIS

                         THIRD DISTRICT

                           A.D., 2007

In re A.W.,                     ) Appeal from the Circuit Court
                                ) of the 10th Judicial Circuit,
     a Minor                    ) Peoria County, Illinois,
                                )
(The People of the State of     )
Illinois,                       )
                                )
     Petitioner-Appellee,       ) No. 05--JA--227
                                )
     v.                         )
                                )
Eugene W.,                      ) Honorable
                                ) David J. Dubicki,
     Respondent-Appellant).     ) Judge, Presiding.
_________________________________________________________________

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


     The circuit court of Peoria County adjudicated A.W. (minor)

neglected and made him a ward of the court.   The respondent-

father, Eugene W., appeals, arguing that the trial court erred

by: (1) ruling that the doctrine of collateral estoppel barred

him from attacking prior indications of sexual abuse brought

against him by the Department of Children and Family Services

(DCFS); (2) finding that he remained unfit to care for the minor

because he was not allowed to complete the sex offender

counseling; and (3) finding that the minor was neglected.   We
vacate the judgment and remand for further dispositional

proceedings.

                                FACTS

     The record reflects that the minor was born on October 5,

2005.   On October 11, 2005, the State filed a petition for

neglect with regard to the minor.     In the petition, the State

alleged, inter alia, that the minor's environment was injurious

to his welfare because: (1) the respondent had been found unfit

by the trial court in a previous case in 2004, and there had been

no subsequent finding of fitness; and (2) DCFS had indicated the

respondent for sexual molestation in 1998 and 2002, and he had

not completed sex offender counseling.

     On January 4, 2006, the court commenced a hearing on the

State's petition.    The State submitted certified copies of a

prior adjudication of neglect with regard to the minor's older

sibling.    These documents showed that the State had filed a

petition for neglect with regard to the older sibling in March

2004.   The petition included the same allegations of sexual

molestation against the respondent as those made in the instant

petition.   The documents further showed that on July 20, 2004,

the trial court entered its written order finding, inter alia,

that the State had proved the allegations of sexual molestation

by a preponderance of the evidence.     Subsequently, the court in

the prior case had assigned to the respondent the following


                                  2
permanency goals: (1) perform random drug drops, and (2) attend

and complete domestic violence classes and sex offender

counseling.

     The adjudicatory hearing continued on April 5, 2006.    The

caseworker testified that the respondent had completed a drug and

alcohol assessment.    No treatment was recommended.   He had been

referred for counseling, but he did not attend regularly.    He had

also completed a sex offender assessment in October 2005.

     The respondent testified that he had successfully completed

a domestic violence class.    He acknowledged that he had missed "a

couple" of counseling appointments.    He had a small residence,

but he was waiting to receive a section 8 voucher so he could

move into a larger space.    He stated that he was aware of the

indications of sexual molestation made against him by DCFS.      He

had been referred to sex offender counseling.    He further stated

that he had not been convicted of any sex crimes.

     The State then objected to any further testimony with regard

to the DCFS indications, arguing that the issue had been

litigated in the prior adjudication.    The court compared the

pleadings of the prior neglect proceeding with those in the

instant proceeding, and it found that the allegations were

identical.    The court noted the prior court's finding that the

allegations had been proven by a preponderance of the evidence.

It further noted that this court had affirmed the court's


                                  3
findings on appeal.   Thus, the trial court ruled that the

respondent was barred by collateral estoppel from litigating the

matter of the DCFS indications of sexual molestation.

     The trial court found that the State proved by a

preponderance of the evidence that the minor was living in an

injurious environment.   Specifically, the court found that the

respondent had not overcome the finding of unfitness in the prior

case because he had not completed sex offender counseling.

Accordingly, the court adjudicated the minor neglected.

     At the dispositional hearing on April 26, 2006, the

respondent testified that he had been performing drug drops as

ordered in the previous case.    All of the drops showed negative

for the presence of narcotics.   He stated that he had attended

sex offender therapy, but that it had not been successful.     The

therapist would not continue the program unless the respondent

admitted to having committed a sex offense.   The respondent

refused to do so.   He asked the therapist if there was another

way to continue the counseling without an admission.    He sought

to discuss the strategies to avoid future offenses, but the

therapist told him that he had to first admit to being a sex

offender.   When the respondent again refused to incriminate

himself, the therapist discharged him unsuccessfully from the

program.

     With regard to this issue, a report prepared by the


                                  4
respondent's counselor after he had been discharged from sex

offender counseling stated the following:

       "We discussed at great length that [his therapist] dismissed

       him from treatment due to his refusal to work on issues.   He

       states that he never committed the offenses in the indicated

       reports and is not an offender, and they will not treat him

       unless he states he did.   Encouraged [sic] him to return to

       treatment to at least learn something from the sessions like

       he did in the domestic violence classes, even though he

       never admitted to being domestically violent."

The report further stated that the respondent had agreed to

return to sex offender therapy, "if [the therapist] will allow

it."

       The respondent concluded his testimony by describing his

visits with the minor.    He stated that he brought food, clothes

and toys for the minor, and the visits always went well.    He

further stated that he would be able to provide housing for the

minor.    The caseworker testified that the visits between the

respondent and the minor went very well.    She had no suspicions

that the respondent was using illegal substances.

       The trial court found the respondent unfit to care for the

minor based on the prior adjudication of the respondent as unfit

and the fact that no subsequent finding of fitness had been made.

It made the minor a ward of the court and awarded guardianship to


                                   5
DCFS.   In explaining its decision, the court relied solely on the

respondent's unsuccessful discharge from sex offender counseling

as the basis for its finding of unfitness.    It noted that the

respondent blamed the therapist, and that it did not have the

benefit of the therapist's testimony.    However, the court

concluded that the respondent "has done a number of things, but

he is unfit because he still has not overcome *** a main hurdle

which led to these cases being in care."

     The respondent appeals the trial court's order.

                              ANALYSIS

                      1.   Collateral Estoppel

     The respondent first asserts that the trial court erred in

barring him from introducing evidence to defend against the prior

allegations of sexual abuse brought by DCFS.     Specifically, he

argues that the doctrine of collateral estoppel did not apply to

the instant case because the prior adjudication was made in a

proceeding involving different minors.

     The well-established threshold requirements for the

application of collateral estoppel are: (1) the issue decided in

the prior adjudication is identical with the one presented in the

suit in question; (2) there was a final judgment on the merits in

the prior adjudication; and (3) the party against whom estoppel

is asserted was a party or in privity with a party to the prior

adjudication.   Gumma v. White, 216 Ill. 2d 23, 833 N.E.2d 834


                                  6
(2005).    For purposes of the application of collateral estoppel,

finality requires that the potential for appellate review must

have been exhausted.    Ballweg v. City of Springfield, 114 Ill. 2d

107, 499 N.E.2d 1373 (1986).

     In the instant case, the respondent had presented a defense

against the same allegations of sexual abuse in a prior juvenile

neglect proceeding.    In the prior proceeding, the trial court

entered its judgment on the merits, finding that the State had

proved the allegations of sexual molestation by a preponderance

of the evidence.   The respondent was a party to the prior

adjudication.   Further, the respondent appealed the trial court's

order.    Therefore the court properly ruled that the doctrine of

collateral estoppel barred the respondent from introducing

evidence to rebut the allegations.

                       II. Self-Incrimination

     The respondent also contends that his constitutional right

against self-incrimination was violated when he was barred from

completing sex offender therapy because he would not admit to any

offenses.

     The fifth amendment to the United States Constitution states

that "[n]o person *** shall be compelled in any criminal case to

be a witness against himself."    U.S. Const., amend. V.    A

communication must be testimonial, incriminating and compelled in

order to qualify for the fifth amendment protection.       Hiibel v.


                                  7
Sixth Judicial District Court of Nevada, Humboldt County, 542

U.S. 177, 159 L. Ed. 2d 292, 124 S. Ct. 2451 (2004).    "[T]he

Fifth Amendment privilege against compulsory self-incrimination

'protects against any disclosures that the witness reasonably

believes could be used in a criminal prosecution or could lead to

other evidence that might be so used.' "    Hiibel, 542 U.S. at

190, 159 L. Ed. 2d at 305, 124 S. Ct. at 2460, quoting Kastigar

v. United States, 406 U.S. 441, 445, 32 L. Ed. 2d 212, 217, 92 S.

Ct. 1653, 1656 (1972).

     In the instant case, we are guided by our prior decision in

In re L.F., 306 Ill. App. 3d 748, 714 N.E.2d 1077 (1999).     In

that case, the trial court gave temporary custody of the

respondent's children to DCFS and subsequently changed the

permanency goal from "return home" to "substitute care pending

termination of parental rights" following the death of a

nonbiological child who was in the respondent's care.      L.F., 306

Ill. App. 3d 748, 714 N.E.2d 1077.   The respondent argued that

her fifth amendment right against self-incrimination was violated

when the trial court changed the permanency goal because she

would not comply with DCFS' requirement that she admit that she

was responsible for the child's death.     L.F., 306 Ill. App. 3d

748, 714 N.E.2d 1077.

     The court noted that this was a case of first impression in

Illinois.   L.F., 306 Ill. App. 3d 748, 714 N.E.2d 1077.    After


                                 8
looking to other states for guidance, the court recognized that

there was a very fine, but important, distinction between taking

steps to terminate parental rights based specifically on a

refusal to waive a right against self-incrimination and doing so

based upon a parent's failure to comply with an order for

meaningful therapy.   L.F., 306 Ill. App. 3d 748, 714 N.E.2d 1077.

The other states' courts ruled that the fifth amendment bars a

state from ordering a parent to choose between losing his or her

parental rights or waiving his or her right to self-

incrimination.   L.F., 306 Ill. App. 3d 748, 714 N.E.2d 1077,

citing In re Clifford M., 6 Neb. App. 754, 577 N.W.2d 547 (1998);

Mullin v. Phelps, 162 Vt. 250, 647 A.2d 714 (1994); In re Welfare

of J.G.W., 433 N.W.2d 885 (Minn. 1989); In re Welfare of J.W.,

415 N.W.2d 879 (Minn. 1987).

     The L.F. court held that the trial court violated the

respondent's right against self-incrimination.    L.F., 306 Ill.

App. 3d 748, 714 N.E.2d 1077.    The court further noted that the

reasoning employed in the case applied to permanency review

hearings as well as termination of parental rights hearings.

L.F., 306 Ill. App. 3d 748, 714 N.E.2d 1077.

     The matter in the instant case arises out of permanency

goals established by the court in a prior case with regard to the

instant minor's older sibling.   We apply the same principle as

the court in L.F. because the trial court's findings of neglect


                                  9
and unfitness were based on its review of the respondent's

progress toward completing the permanency goals established in

the prior case.   Thus, although the instant case arises from a

different procedural stage than L.F., the circumstances that form

the basis of the respondent's argument are the same.

     In addition, we note that the manner in which the respondent

was compelled to waive his constitutional right against self-

incrimination is less overt than that in L.F., but the effect is

the same.   Here, DCFS did not make it a goal for the respondent

to admit to an offense.   Thus, he was not compelled to make an

admission in court.   However, the therapist referred by DCFS made

the respondent's admission of guilt a complete hurdle to

completion of the court-ordered therapy.    Therefore, the

respondent here was forced to make the same choice as the

respondent in L.F.: he had to admit to having committed a sex

offense in order to complete the last task or risk losing his

child.

     We further find the case of In re Welfare of J.W.

instructive on this issue.   J.W., 415 N.W.2d 879.   In that case,

after removing the minors from their parents' care, the trial

court ordered a treatment plan where the respondents were

required to explain to a psychologist the death of their two-

year-old nephew who was in their care.     J.W., 415 N.W.2d 879.

The order provided that the minors remain in foster care until


                                10
the parents completed the treatment plan.   J.W., 415 N.W.2d 879.

In holding that the order violated the parents' fifth amendment

rights, the court noted that a state cannot compel testimony by

threatening to impose potent sanctions, such as the loss of

parental rights, unless the respondent surrenders his or her

constitutional privilege.   J.W., 415 N.W.2d 879.

     The court in L.F. anticipated that the same issue may arise

upon its remand of the case for further proceedings.     There the

court warned:

          "[W]e note that the [trial] court may, upon remand,

     order DCFS to structure a service plan that requires the

     respondent to engage in effective therapy.     While DCFS may

     not compel therapy treatment that would require the

     respondent to incriminate herself, it may require the

     respondent to otherwise undergo treatment.     Therapy,

     however, which does not include incriminating disclosures

     may be ineffective and ineffective therapy may hurt the

     respondent's chances of regaining her children.     As was

     noted in In re J.W., 'these consequences lie outside the

     protective ambit of the Fifth Amendment. '[Citation.]"

     L.F., 306 Ill. App. 3d at 754.

     The violation of the respondent's fifth amendment right in

the instant case occurred because he was not allowed to complete

the sex offender therapy without admitting to an offense.


                                11
According to his counselor, he was able to successfully complete

the domestic violence course even though he refused to admit to

any violence.   We also note that the respondent had cooperated

with DCFS in completing every other task assigned to him.    In an

attempt to complete the therapy, the respondent inquired as to

whether his therapist could counsel him on strategies to avoid

offending in the future in spite of his refusal to admit to an

offense.   We recognize that the treatment may not be effective in

the absence of an admission of misconduct.    However, the

respondent was deprived of an opportunity to complete the sex

offender therapy.

     In fashioning the appropriate remedy for this violation, we

also recognize that the loss of custody is "essentially 'the

stick' the court is holding over respondent's head to get

compliance with another of its orders: counseling."     In re A.A.,

315 Ill. App. 3d 950, 953, 735 N.E.2d 179, 181 (2000).    In A.A.,

the court further noted that the respondent's failure to complete

the ordered counseling while maintaining a close relationship

with his children gave his family a false hope of reunification.

A.A., 315 Ill. App. 3d 950, 735 N.E.2d 179.    That false hope was

not in the best interest of the children.     A.A., 315 Ill. App. 3d

950, 735 N.E.2d 179.   In the instant case, there was no evidence

of what, if any, efforts the respondent made to complete the

ordered counseling once he was denied by the DCFS therapist.    The


                                12
respondent still had an obligation to complete the sex offender

counseling, but there is no evidence to show whether he had other

means of therapy than the DCFS therapist.     While we uphold the

trial court's finding of unfitness, we vacate the court’s order

and remand the case to reopen the dispositional hearing for the

limited purpose of allowing the respondent to propose his own

service plan that would allow him to complete the sex offender

counseling without incriminating himself.

     Based upon our ruling, we need not address the respondent's

next contention that the trial court's finding of neglect was

against the manifest weight of the evidence.     The finding of

neglect was based, in part, on the respondent's unsuccessful

discharge from sex offender therapy.      However, even if we removed

that basis, the remaining bases would have been sufficient to

support the court's finding of neglect.     Thus, we allow the

neglect finding to stand, and we remand this case for further

dispositional proceedings with instructions.

                             CONCLUSION

     For the reasons stated, the judgment of the circuit court of

Peoria County is vacated, and we remand the cause for further

dispositional proceedings with instructions to allow the

respondent to present his own service plan with regard to

completing the court-ordered counseling.

     Vacated and remanded.


                                 13
     CARTER, J., concurring.

     JUSTICE SCHMIDT, dissenting:

     I would affirm the trial court in its entirety.    We are

sending this case back and, in essence, telling respondent to go

find some evidence that he did not offer before.    Had he

suggested alternative counseling below and had the trial judge

refused to even consider it, that would be another matter.    That

is not what happened here.   I do not believe it is our function

to say to a party, "Here is what you should have done.    Now go

back, get a new expert witness who will say you are fit, and try

it again."   Even if respondent finds a counselor who says he can

treat him without an admission, DCFS will undoubtedly continue to

refute respondent's fitness and the trial judge will have to

decide which opinion on fitness is more credible.    On what other

kind of case do we vacate judgments on the basis that one party

or the other ought to have a chance to produce an expert that the

party did not offer prior to the judgment?   The trial court did

not err.   Therefore, we should affirm.




                                14
