People v. Elizabeth L. , 384 Ill. App. 3d 689 ( 2008 )

No. 3--08--0254
(Consolidated with No. 3--08--0255)
______________________________________________________________________________
Filed September 8, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
In re C.L. and T.L., ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
Minors ) Peoria County, Illinois,
)
(The People of the State of )
Illinois, )
)
Petitioner-Appellee, ) Nos. 07--JA--281 and
) 07--JA--282
v. )
)
Elizabeth L., ) Honorable
) Kim L. Kelley,
Respondent-Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE WRIGHT delivered the opinion of the court:
______________________________________________________________________________
The State filed two separate juvenile petitions alleging that the minors, C.L. and T.L.,
were neglected because of an injurious environment while in the respondent's care. At the time
of the petitions, the respondent mother, Elizabeth L. and the minors’ father, Benjamin L., were
divorced. Pursuant to the respondent's and father’s stipulations, the trial court adjudged the
children to be neglected. Following the dispositional hearing, the court elected not to make the
minors wards of the court but entered a written order following the dispositional hearing. The
order found the respondent unfit and father fit, granted guardianship of the children to the father,
and then closed the cases in Nos. 07 JA 281 and 07 JA 282. On appeal, the respondent argues
that the court erred by giving guardianship of the minors to the father and then closing the cases.
We affirm in part and vacate in part.
BACKGROUND
Initially, we note that the record provided to this court consists of: (1) the transcript of the
adjudicatory hearing; (2) the transcript of the dispositional hearing; (3) an exhibit containing
photographs of C.L.; and (4) four volumes of the common law record. Volume 1 of the common
law record contains documents concerning C.L.'s case and volume 2 contains documents
concerning only T.L.'s case. Volumes 3 and 4 of the common law record contain the following
lengthy reports applicable to both minors in this case and three additional siblings:(1) the
dispositional report covering August 22, 2007, to March 13, 2008; (2) the original “Addendum to
Dispositional Hearing” covering March 13, 2008, through March 27, 2008, and a duplicate copy
of the same original report; and (3) an “Addendum to Dispositional Hearing Report” covering the
time from March 27, 2008, to April 2, 2008, the dates before the dispositional hearing. The trial
court took judicial notice of the Peoria County file No. 01 JA 15, which has not been made part
of this record.
By way of background, the petition asserts that mother has five children. Mother’s two
youngest children are the subject of this appeal. T.L., a female, was born on December 25, 2002,
and C.L., a male, was born on December 2, 2005. Respondent married the father of T.L. and
C.L. The dispositional report, discusses that the respondent and the father divorced after 19
months of marriage and that their marriage ended in 2006. Father’s answer in the record
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discloses the marriage was the subject of proceedings in Tazewell County in case No. 06 D 413,
which remains an open case in that county.
The record contains a social history prepared by a clinical screener for the Department of
Children and Family Services (DCFS) based on information collected in September of 2007.
This social history, contained in this record on appeal, reveals that DCFS focused its attention on
C.L. and T.L. after a mandated reporter observed C.L. to have multiple bruises in various stages
of healing on his head, face, body and penis. He also had a “busted” lip and swelling to the left
side of his nose. The record discloses C.L.’s injuries were photographed and he was taken to a
physician on August 10, 2007.
The social history describes that the children were taken into protective custody, along
with their three older siblings, on August 13, 2007. The three oldest children are not the subject
of this appeal.
The social history reports that the court held a shelter care hearing on August 15, 2007,
and placed the children in the temporary custody of their maternal grandmother, The same report
discloses that the father of T.L. and C.L. later petitioned the court, on September 5, 2007, to
vacate a portion of the August shelter care order and return the children to him. These shelter
care orders are not documented in the record in either No. 07 JA 281 or No. 07 JA 282.
The common law record in this appeal begins with the State’s petition requesting all of
the children be made wards of the court and alleging the minors to be neglected because of an
injurious environment. The petitions were filed by the State on November 29, 2007.
The record does contain a shelter care order dated November 29, 2007, wherein the court
found probable cause for shelter care based on proffered evidence and by taking judicial notice of
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Peoria County case No. 01 JA 15. The court continued the placement of C.L. and T.L. with their
father while all other siblings remained with the maternal grandmother. On that date, the
biological father of both T.L. and C.L. was personally present in court. However, the shelter care
order shows the other fathers of the older siblings did not appear.
On November 29, 2007, the court conducted a first appearance with the father of T.L. and
C.L., finding him to have legal status as the parent of T.L. and C.L. based on paternity test
results. As previously stated, the father of T.L. and C.L. appeared in court on November 29,
2007. That same day, the father stipulated to the allegations in the petitions in his answer and
waived strict proof thereof. In his answer, the father also wrote:
"These minors are the subject of a child custody proceeding before another
court and there is not a court order affecting custody or visitation. The
other forum is Tazewell County Family Court case No. 06 D 413."
The first appearance with the other fathers was continued to another date.
The relevant portions of the State’s juvenile petition in Nos. 07 JA 281 and 07 JA
282, filed on November 29, 2007, alleged that, while in the respondent's care, the children
were neglected because of an injurious environment. The petition alleged that on August
10, 2007, a physician examined C.L. and observed C.L. to have bruising evident on his
head, face, and nose, swelling on the left side of his face, a split lip, and a bruise on his
penis. The petition alleged that mother explained the injuries occurred because C.L. bangs
his head on the floor. She allegedly told the doctor that she would continue to allow this
behavior based on another doctor’s advice.
As to T.L., the petition alleged that a physician discovered a contagious form of
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impetigo on her legs on August 10, 2007. The physician also observed another sibling to
have a suspected fungal rash on her stomach.
The petition also alleged that on three separate dates in 2007, respondent delivered
her children to the crisis nursery for care, stating on one of those occasions that she needed
their services because one of her children ran into a window. According to the petition, on
another occasion, mother stated that T.L. had a burn on a leg, and that on yet another
occasion, respondent had been the victim of domestic violence. The petition further
alleged that T.L. informed the crisis nursery staff that respondent’s boyfriend tells her to
bend over and he “beats” her.
The petition also recited that respondent had previous indicated reports for
inadequate supervision of her children in 2000, for risk of harm in both 2001 and 2002, for
inadequate shelter in 2004, and for inadequate supervision in March of 2007. The petition
also noted the respondent’s involvement in No. 01 JA 15 from February 2001 until
January of 2003 and that the status of the oldest three siblings’ fathers was “unfit” as
determined by the court in No. 01 JA 15.
On February 28, 2008, mother filed an amended answer that stipulated that the
State could prove the allegations of the petition asserting the children were neglected
because of an injurious environment. The State dismissed the allegations set forth in
paragraph “1.L” of the petition. The court requested and received a factual basis from the
State and adjudged all five siblings to be neglected.
The factual basis recited by the State is included in the transcript of the
proceedings and is also a part of this record. According to the factual basis, a physician
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concluded that C.L.’s injuries were not consistent with head banging. The State offered
photographic exhibits depicting C.L. with visible bruising. The factual basis described a
physician’s findings that T.L. had impetigo and another sibling had a rash on her stomach.
The State described that the staff at the crisis nursery observed T.L. to have a burn on a leg
evident during an intake at the center. The State described that mother reported to the
crisis nursery staff that she was the victim of domestic violence and that T.L. also reported
to the staff that in February of 2007 respondent’s boyfriend, “Joe”, beat T.L. after telling
her to bend over.
As part of the factual basis, the State requested the court to take judicial notice of
the file in No. 01 JA 15 and reported to the court the previous status of indicated reports
involving mother and prior investigations by DCFS. Based on the matters recited into the
record, the court found all five minors to be neglected as alleged in the petition and
continued the matter for a dispositional hearing.
The dispositional hearing took place on April 3, 2008. This hearing concerned all
five siblings, that is, C.L. and T.L. and three of the respondent's other children by two
other fathers. At the conclusion of the hearing, after much discussion, the court orally
pronounced its findings as they related to C.L. and T.L. The court found the father to be
fit and stated that the court was closing C.L.’s and T.L.’s cases. The court went on to
make the other three siblings wards of the court. The court’s findings are included in a
preprinted form order designated as “Form 466" in the lower left hand corner of the page.
Mother filed a timely notice of appeal from the court’s order.
ANALYSIS
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Mother only appeals from that portion of the dispositional order that awards
guardianship of the minors to their father and closes the juvenile case without making the
minors wards of the court in Nos. 07 JA 281 and 07 JA 282. The State argues that the
court’s decision to avoid making the minors wards of the court was in the best interests of
the minors and should not be set aside unless against the manifest weight of the evidence.
The proceedings in this case are governed by the Juvenile Court Act of 1987 (Act)
(705 ILCS 405/1--1 et seq. (West 2006)). Under the Act, after the court determines that a
child is neglected, the court is required to hold a dispositional hearing. 705 ILCS 405/2--
21(2) (West 2006). At this hearing, the court must first determine whether the minor is to
be made a ward of the court. 705 ILCS 405/2--22(1) (West 2006). Only after a finding
that the minor should be made a ward of the court can the court issue a dispositional order
affecting the future conduct of the parents. 705 ILCS 5/2--23(1) (West 2006). Likewise,
the court’s consideration of the need for guardianship and whether a parent is
dispositionally unfit must be preceded by the court’s finding that it is in the best interest of
the minor to become a ward of the court. 705 ILCS 405/2--27(1)(a) (West 2006).
In this case, the trial court found T.L. and C.L. to be neglected, and then held the
required dispositional hearing. Sometime after the hearing, the court signed and issued a
written form order, titled as a dispositional order. The preparation of the order is not
acknowledged in the transcript of the proceedings.
Regardless, the form order selected in Nos. 07 JA 281 and 07 JA 282, marked as
“Form 466,” included a preprinted finding that it was in the best interest of the children to
be made wards of the court. However, in the lower portion of the preprinted form, the
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judge did not mark the box that would have indicated the judge’s intention to make both
minors wards of the court. Importantly, the judge verbally announced on the record, in
open court, that he was declining the request to make either T.L. or C.L. a ward of the
court.
The court’s verbal findings are set forth below:
“Mr. L*** is fit per the report and all the evidence before the court. The
question as to L*** is, do I close the case now, because I do feel the
guardianship is appropriate in Mr. L*** as evidenced by that report, or do
I keep wardship open for a period of time. And the court is going to find
that Mr. L*** provides a stable environment. He provides permanency for
the children. The children have been with him for a while and the court is
going to adopt the recommendations of the guardian ad litem and the
People and close this matter. “
Much later in the record the court states:
“ The court finds for all children, all three children, other than the
L*** children, they need to be wards of the court and guardianship needs
to be placed with the Department of Children and Family Services with
right to place.
As to L***, I’m closing that with some order of visitation to be
ascertained after the lunch hour.”
The best interest finding that was preprinted on the the form order was inconsistent with
the lower portion of the same order where the judge did not mark the box making the minor’s
8
wards of the court. The case law provides that in this situation, the court’s verbal pronouncement
controls over any conflict created by the written order. In re K.L.S-P., 381 Ill. App. 3d 194, 195
(2008); In re Taylor B., 359 Ill. App. 3d 647, 651 (2005). Thus, we conclude from this state of
the record on appeal that the court did not make either C.L. or T.L wards of the court.
Juvenile court is a forum most caregivers do not desire to enter but are compelled to by
circumstances beyond their control. In the context of neglect and abuse cases, the Juvenile Court
Act allows the State to intervene in the decision making of parents, custodians, and/or guardians
of children under very narrow circumstances. Those circumstances require a finding by the
juvenile court judge that it is in the best interest of the children at risk to become wards of the
court. Without this finding, the juvenile court doors remain closed, even after an emergency
shelter care order has temporarily affected the placement of the children.
The juvenile court judge is not required to make every child a ward of the court based on
the State’s petition, but must selectively designate children to become wards of the court, who
otherwise do not have a parent or parents who will act in the best interests of the children without
some degree of court intervention.
When comparing the parental circumstances relevant to C.L. and T.L. to the
circumstances of the other older siblings that were designated to become wards of the court, a
distinction emerges that supports the court’s ruling regarding T.L. and C.L. The fathers of the
other siblings previously had been found unfit by the court in No. 01 JA 15 and that finding
remained unchanged. Based on these circumstances, the trial court did not have the option of
placing the oldest three siblings with a fit biological parent following the court’s undisputed
finding of mother’s neglect. In contrast, the father of T.L. and C.L. had not previously been
9
found to be unfit and was not alleged in this petition as unfit and the court did not receive any
evidence that he would be potentially abusive or neglectful.
Furthermore, the judge ordered the mother in this case to receive services to improve her
parenting skills as part of the other dispositional orders entered in the related juvenile cases for
her three oldest children. Additionally, the parties and the court discussed the fact that Tazewell
County case No. 06 D 413 remained open and provided a forum for either parent of T.L. and C.L.
to modify visitation and custody matters.
Although it is not clear from the record what the status of the custody orders were in No.
06 D 413, neither party requested either a transfer or the consolidation of the divorce and juvenile
cases. As the court considered closing the juvenile files, the parties were very aware that once
closed, the Tazewell County court that had exercised its jurisdiction to order the dissolution of
the marriage could, if requested, decide issues related to custody and visitation.
In this case, the court did not make the decision regarding wardship lightly. The court’s
concern for the well-being of all five minors is evident of record. The court’s working
knowledge of lengthy exhibits, all filed with the court on the date of the dispositional hearing, is
apparent from the transcript of proceedings. The court struggled with the desire to restore T.L.’s
and C.L.’s family unit with mother and the other siblings by balancing this concern with the need
to provide permanency to C.L. and T.L., who were doing well with their biological father.
In this case, the permanency goal for T.L. and C.L. to remain home with their biological
father was part of the juvenile record. The reports submitted to the court as part of the
dispositional evidence document that C.L. and T.L. are well adjusted in father’s home and
thriving as a result of the stability he has provided for the minors since September of 2007.
10
There is nothing in the record to suggest the court’s decision to close the juvenile files and allow
the divorce court to address the parental issues was unfounded or erroneous in light of the
circumstances of this case.
Even though we observe the record supports the trial judge’s decision to close the files
before making the children wards of the court, the Juvenile Court Act does not require a court to
enter any finding before closing a juvenile case at this stage. The structure of the Juvenile Court
Act is premised on the fact that parents should be allowed to raise their children without
intervention or the risk of termination of parental rights by the State, unless certain criteria are
met.
Even when one parent is determined to be unfit under the Juvenile Court Act, and
wardship arises, the other parent’s rights are superior to the State’s interest. In re Ta.A., No. 3-
07-0513, slip op. at 7 (July 7, 2008); In re Ryan B., 367 Ill. App. 3d 517, 520 (2006). By
analogy, when one parent is found dispositionally unfit and the other parent is without fault and
willing to assume the role of parenting the children, a court may not interfere unless the court
determines it is in the best interests of the minors to become wards of the court. That said, a
biological parent has superior rights to the State and may step in to parent his or her children
when the other parent for some reason can no longer properly exercise his or her parental
responsibilities. Such is the case at bar.
After the court found the children to be neglected by mother, the children still had a
biological father who was ready, willing, and legally able to step in to protect and provide for his
children and by all accounts has done so. Mother does not dispute the temporary placement of
the children with this father or the court’s subsequent finding the children had been neglected.
11
No one has claimed that this father, who was divorced from mother, contributed to the injurious
environment that resulted in the determination of neglect.
Parental rights exist unless voluntarily surrendered or involuntarily terminated. After the
court closes the files, the parental rights of mother and father remain intact and both remain legal
guardians of these children. It was not necessary to designate one or the other as guardian. In
fact, without designating the minors to be wards of the court, the judge could not name a
guardian. 705 ILCS 405/2-27(1) (West 2006). The portion of the order that names father as
guardian exceeded the scope of the court’s authority after closing the cases and must be vacated.
Moreover, the order of visitation exceeded the court’s authority after the judge
announced the decision to close the cases. The record shows the court and the parents desired to
have the siblings stay in contact with each other and their mother at combined sibling and
parental visits. The parties hoped these visits could be supervised by DeLisa Jo Dorelle/Munn,
the designated supervisor of visitation. However, the record suggests the supervisor of visitation
would not supervise visits without a written court order.
The single-page visitation order in this case included the case numbers for all five
juvenile files corresponding to mother’s biological children, including C.L. and T.L. While the
court’s purpose in including Nos. 07 JA 281 and 07 JA 282 in that visitation order with the other
siblings is understandable, even the court was cognizant of the fact that closing the juvenile case
would not prevent either father or mother from seeking a different schedule for visitation before
the court in Tazewell County where their divorce occurred. To this end, the juvenile court judge
said:
"I'm also going to look [at], as part of [mother’s] service plan,
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visitation with the children at the visitation center. So I want you to know
that, but anything I do here won't stop her from seeking relief in the D case
in Tazewell County."
We note, mother does not request that the visitation order should be set aside. In the
context of this record, we do not view the order of visitation bearing all five juvenile case
numbers as an expression of the court’s intent to treat T.L. and C.L. as wards of the court.
However, after closing the juvenile cases, the visitation order is unenforceable because neither
T.L. nor C.L. is a ward of the court nor are their juvenile cases still open.
Dispositional decisions, such as visitation orders, findings of unfitness, and
determinations of guardianship are statutorily predicated upon the court first making the minors
wards of the court. See, e.g., 705 ILCS 405/2--23(1), 2--27(1) (West 2006). The trial court’s
order regarding guardianship, which has been challenged by mother in this appeal, was
unauthorized under sections 2-23(1) and 2-27(1). 705 ILCS 405/2-23(1),2-27(1)(West 2006).
Related thereto, the trial court's consideration of dispositional unfitness was also premature and
unauthorized, under section 2--27(1), since these children were not made wards of the court. See
705 ILCS 405/2--27(1) (West 2006).
Dispositional orders that are not authorized by statute are void and must be vacated. In re
D.W., 214 Ill. 2d 289, 309 (2005). Therefore, we vacate that portion of the order, challenged by
mother in this case, granting guardianship of the minors to the father. Additionally, we vacate
the court’s findings in Nos. 07 JA 281 and 07 JA 282 declaring mother unfit and father fit.
The difficulty in this case stems from the failure to strike preprinted, but inapplicable,
findings in this case and directly resulted from the missuse of a standardized form that was not
13
designed to be used in every case. While useful tools in the chaotic and emotional juvenile
courtroom, form orders should not be used to delegate the task for making an accurate record to
courtroom staff. This is a duty of the judge.
For the foregoing reasons, regarding the written order
issued by the Peoria County circuit court on April 3, 2008, we:
(1) affirm the trial court’s decision to close these cases; and
(2) vacate those portions of the written order granting
guardianship of the minors to the father, finding mother
dispositionally unfit and declaring father to be fit.
Affirmed in part and vacated in part.
O’BRIEN, J., concurs.
PRESIDING JUSTICE McDADE, concurring in part and dissenting
in part:
The majority finds that because the children -- T.L., age
5, and C.L., age 2 -- were not made wards of the State, the trial
court was without authority to enter its orders finding the
mother unfit, finding the father fit, awarding guardianship of
the children to the father, directing the mother to complete
specified service tasks, and scheduling the mother’s supervised
visitation with the children. All of those orders have been
vacated by the majority, and I concur with that action.
I also agree with the majority’s conclusion that the trial
court devoted a great deal of effort and attention and exhibited
care and sensitivity in its consideration of these cases.
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However, the majority affirms the order closing these cases
and, for the reasons that follow, I dissent from that decision
and would find that the matter needs to be returned to the
circuit court and done over properly. I do not think we can
begin to responsibly assess whether the ultimate disposition of
the children was correct because we have been presented with a
procedural quagmire.
Father has been given custody of these children by the
circuit court in this case. The record contains a shelter care
order issued on November 29, 2007. Nonetheless, the
dispositional report states that: (1) on September 5, 2007, the
father filed a petition to vacate the shelter care order; (2) the
petition was granted; and (3) the children were placed with the
father. The record does not contain either a petition by the
father to vacate the shelter care order, or a court order
granting such a petition and placing the children with the
father. Thus, the record is unclear about how and when and with
what judicial findings the children initially went from custody
of the mother to the custody of the father.
This placement with the father was confirmed in the
dispositional order finding the father fit and declaring him
guardian. We have, quite properly I believe, vacated that
finding of fitness and award of guardianship. Thus, one bottom
line in this case is that we have custody awarded to the father
15
with no determination of record that he was a fit person to
secure the children’s release from shelter care or to be
designated guardian.
Yet another bottom line is that we have a mother who has
been stripped of custody on a determination that the children
were neglected. There is now, however, no finding that she was
unfit and no order of visitation or an opportunity to receive
rehabilitation services necessary to reclaim C.L. and T.L.
For these reasons alone I do not believe we can responsibly
affirm the order closing the cases.
Those are not, however, my only reasons. I am also
concerned that we are being asked to review the propriety of
closing these cases on a record lacking information critical to
that review. As long as we cobble together bits and pieces of
information, hoping that we have gleaned everything that is
relevant, neither we nor the trial courts nor the parties will
come to grips with the need for a complete record. Moreover, our
increasing reliance on form orders where boxes are sometimes
checked and sometimes not; where, as here, the form itself is
internally inconsistent (at least to the extent of requiring (or
presuming) a finding that it is in the best interest of the
children to be made wards of the State, but also including a box
permitting a contradictory finding); and where the written
narrative findings demanded by the statute are non-existent is
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troubling. It deprives us of sufficient information to make
well-reasoned and fair decisions on appeal, negatively impacting
their reliability and compromising the legislature’s stated
goals.
Finally, the mother in this case will get state-provided
services and visitation with C.L. and T.L., but only because of
the other cases in which she is a party. Absent those cases, the
trial court’s disposition leaves her with a finding that she is
unfit, that she cannot have custody of her children, and that she
will not have services necessary to reclaim them. Our decision -
- again, absent the other cases -- leaves her technically fit,
but without her children and without resources to earn them back.
That may be the appropriate disposition, but we cannot really
tell from this record.
For all of these reasons, I cannot agree that the cases
should remain closed and I dissent from that decision.
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