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September 01, 2014

Open-Ended Judicial Questioning Did Not Violate Judicial Neutrality

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re Tamesha T., 2014 WL 3722091 (Ill. App. Ct.).

In adjudication hearing, where caseworkers testified about prevention services and reasons for removal, and the court asked open-ended questions primarily for elaboration, court’s questioning did not prejudice mother or deviate from judge’s role as neutral trier of fact.

Five children came to the agency’s attention after it received hotline calls alleging the children were seen outside the home naked and unsupervised and the home was unsafe due to rodents, insects, and accessible knives. 

The agency initially provided in-home services. Six months later, the agency filed a petition requesting removal after the mother failed to make progress with services and was hospitalized due to homicidal thoughts against a child. Soon thereafter, the sixth child was born and the agency filed another petition alleging neglect.

At the adjudication, the agency caseworker testified regarding preventative services, which had included a psychological assessment, parenting classes, parenting coaching, and homemaker services. Both the caseworker and the homemaker went to the mother’s home almost daily for months. Despite these efforts, serious issues in the home continued. 

At the end of the direct testimony, the judge asked the caseworker a number of questions. This included why she had not recommended domestic violence services. The caseworker testified that she did not want the mother to be overwhelmed with service obligations and, despite the history of domestic violence, the mother was not currently in a relationship. 

The judge asked about the removal decision. The caseworker indicated that it was due to lack of progress and cooperation, citing the fact that the mother disappeared for several weeks.

The judge asked follow-up questions about parenting classes and homemaker services. The caseworker indicated that the mother did not apply the skills she should have learned from those services. In particular, with the homemaker service, the house would be clean through the week when the staff was present, but by Monday, the house would again be dirty.

On cross-examination, the caseworker affirmed that the mother did complete parenting classes. She testified that parenting coaching was inconsistent as the mother would not always let the coach into the house. 

Still on cross, she testified about the homemaker’s role—to teach the mother to clean, be organized, cook meals. She noted the mother would do these things during weekdays when the homemaker was present, but would not keep up the routines through the weekends. The judge interjected at that point to ask if the caseworker had seen the homemaker with the mother. She had many times. 

A psychological evaluation was admitted indicating the mother had cognitive deficits that would make parenting difficult. The evaluation recommended the same services implemented by the agency. 

A counseling report was admitted. It noted the mother attended a little more than half the sessions. It revealed the counselor developed weekly schedules to help mother plan for her children, but she always reportedly lost them. The report stressed the mother’s financial difficulties. Despite receiving $3,500 in social security benefits one month, the mother had spent all but $100 by the second week and could not account for $1,500. 

Next the caseworker who dealt with the removal testified. Her testimony reinforced the unsanitary nature of the home. The court interjected at times to ask about her observations of sleeping arrangements and adequacy of food provisions.

The court found the state had proven neglect by a preponderance of evidence due to the ongoing unsafe housing conditions and lack of progress in services. At a disposition hearing immediately thereafter, it found the children should be in agency custody. The mother appealed.

The Appellate Court of Illinois affirmed. 

The mother had argued the judge abused his discretion by questioning witnesses during the adjudicatory hearing and there was unsubstantial evidence of neglect. 

Regarding the judicial questioning, the court reviewed this to determine if it was an abuse of discretion. The mother contended on appeal the court’s questions were “neither brief, neutral in character, nor for clarification purposes,” but rather were designed to elicit responses supportive of the state’s position. 

The court explained that a court may question witnesses but must retain his or her role as a neutral trier of fact. Further, courts have more latitude in questioning witnesses in a bench trial where no jury might be unduly influenced by any inferences they might draw from the judicial questioning. 

The court found the questions posed were clarifying or pertinent to elements related to the adjudication. They were open-ended and could have as easily resulted in responses favorable to the mother. In fact, some responses were favorable such as the clarification that mother had not participated in domestic violence services based on advice from the agency. 

The case is distinguishable from one the mother relied on for support. In that case, the judge went much farther and called an alleged delinquent’s accomplice, thereby substantially helping the state’s case. 

As to the sufficiency of evidence, the mother argued on appeal that the court ignored evidence showing that none of the children were malnourished, they were attending school, and they had not been otherwise physically harmed. Further she contended that as a mother of six children, it was common for her to have a messy home. 

The court again reviewed the evidence presented at adjudication. It concluded the totality of the circumstances could reasonably be found to present an unsafe environment for the children; as such, the judgment was supported by substantial evidence.