People v. Oscar H.

Docket Nos. 103620, 103639 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re LEONA W., a Minor, Appellant (The People of the State of
Illinois, Appellant, v. Oscar H., Appellee).
Opinion filed April 3, 2008.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Garman, and Burke concurred in the judgment and opinion.
OPINION
This appeal arises from a judgment of the circuit court of Cook
County that found Oscar H. to be unfit and terminated his parental
rights to Leona W. (L.W.), his biological daughter. The appellate
court reversed and remanded with directions. In re L.W., 362 Ill. App.
3d 1106 (2005). We denied leave to appeal, but in the exercise of our
supervisory authority, we directed the appellate court to vacate its
judgment and reconsider the cause in light of our decision in In re
Arthur H., 212 Ill. 2d 441 (2004). In re L.W., 218 Ill. 2d 540 (2006)
(supervisory order). Following remand, the appellate court reached
the same conclusion it had initially and once again reversed and
remanded to the circuit court. 367 Ill. App. 3d 844. The State and the
office of the Cook County public guardian, representing the interests
of L.W., then petitioned our court for leave to appeal. 210 Ill. 2d R.
315. We allowed those petitions and consolidated them. For the
reasons that follow, we reverse the appellate court’s judgment and
remand the cause to that court for further proceedings.
L.W., the biological daughter of Oscar H., was born in October of
1996 to Sandra W., a drug addict. At the time of her birth, L.W.
tested positive for intrauterine cocaine exposure and syphilis. She was
subsequently found to be suffering from mental deficits, a seizure
disorder and asthma.
Within weeks of her birth, L.W. was taken into protective custody
by the Department of Children and Family Services (DCFS).
Although this was originally intended to be a temporary measure,
L.W. has never lived with either of her biological parents. She is now
11 years old.
In early November 1996, less than three weeks after L.W.’s birth,
DCFS filed a petition under section 2–13 of the Juvenile Court Act
of 1987 (705 ILCS 405/2–13 (West 1996)) asking that the child be
made a ward of the court. That request was predicated on DCFS’s
allegation that L.W. was neglected within the meaning of section
2–3(1)(b) of the Juvenile Court Act (705 ILCS 405/2–3(1)(b) (West
1996)) because her environment was injurious to her welfare. More
specifically, the petition alleged that the whereabouts of L.W.’s
mother were currently unknown, that the mother had admitted to
cocaine use three weeks before L.W. was born, and that the mother
had failed to utilize support services which had been offered to her.
As an additional basis for requesting that L.W. be made a ward of
the court, the petition also alleged that the child was abused within
the meaning of section 2–3(2)(ii) of the Juvenile Court Act (705 ILCS
405/2–3(2)(ii) (West 1996)). The grounds for that allegation were that
the mother or other person responsible for the child’s welfare
presented a substantial risk of physical injury to her because (1) the
mother had a documented history of inadequate supervision of the
child’s siblings and (2) one of those siblings had been sexually
molested and sustained a fractured arm due to physical abuse.
When DCFS initially filed its petition for adjudication of
wardship, the identity of L.W.’s father was unknown. Oscar H.
subsequently came forward and admitted paternity. In January of
1997, the circuit court entered an order memorializing Oscar H.’s
admission. By separate order the court appointed the public defender
to represent him. The petition for adjudication of wardship was then
amended to name Oscar H. as L.W.’s biological father.
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A hearing on the petition for adjudication of wardship was
convened February 25, 1997. In connection with that hearing, the
parties stipulated that Sandra W. and Oscar H. are L.W’s biological
parents; that L.W. was born on Oct. 21, 1996; that at the time of
L.W.’s birth, Oscar H. was “noncustodial”; and that if called as a
witness, Judith Kilpatrick, a social worker with Cook County
Hospital, would testify that Sandra W. had admitted using cocaine
three weeks prior to L.W.’s birth and wished to give up the child. The
parties further stipulated that Pam Rowlands, a caseworker with
Catholic Charities, would testify that at the time L.W. was born,
Sandra W. had eight other children, all of whom were in DCFS
custody, and that Sandra W. had not completed any drug
rehabilitation services.
The circuit court reviewed the parties’ stipulations, which were
read into the record at the February 25, 1997, hearing. At the
conclusion of that hearing, the circuit court entered an order which
found, based on the stipulated facts, that L.W. was abused within the
meaning of the Juvenile Court Act because she was at substantial risk
of physical injury as set forth in section 2–3(2)(ii) of the Act (705
ILCS 405/2–3(2)(ii) (West 1996)). The matter was then set for a
dispositional hearing.
By consent of all the parties and with approval of the court, the
normal 30-day deadline for the dispositional hearing was waived. See
705 ILCS 405/2–21(3) (West 1996). The dispositional hearing was
ultimately conducted on April 29, 1997. At the conclusion of that
hearing, the court entered a dispositional order in accordance with
section 2–23 of the Juvenile Court Act (705 ILCS 405/2–23 (West
1996)). That order made L.W. a ward of the court; found both parents
“unable for some reason other than financial circumstances alone to
care for, protect, train or discipline the minor”; held that reasonable
efforts had been made to prevent or eliminate the need to remove the
minor from the home, but that appropriate services aimed at family
preservation and family unification had been unsuccessful;
determined that it was in the best interests of L.W. to remove her
from her parents’ custody and care; and placed L.W. in the custody
of the DCFS Guardianship Administrator with the right to place the
minor. See 705 ILCS 405/2–27 (West 1996).
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As authorized by section 2–23(2) of the Juvenile Court Act (705
ILCS 405/2–23(2) (West 1996)), the court also entered an order of
protection pursuant to section 2–25 of the Act (705 ILCS 405/2–25
(West 1996)). The order prohibited any unsupervised contact between
L.W. and Sandra W., but allowed Oscar H. to have unsupervised day
visits with the child subject to various conditions. Finally, the court
scheduled a progress report and permanency hearing for June 9, 1997.
Numerous proceedings ensued. On May 13, 1997, Oscar H.
moved to vacate the prior placement orders and to have custody of
L.W. be given to him. This was styled “emergency motion to return
home” and was submitted on Oscar H.’s behalf by the public
defender. A hearing on that motion was held June 9, 1997, the same
date set for the permanency hearing and progress report. The result of
that hearing was entry of an agreed order which set as a permanency
goal L.W.’s “return home,” meaning her return to Oscar H.’s home.
Shortly thereafter, on June 19, 1997, a second agreed permanency
order was entered. The new permanency order set as a goal L.W.’s
return home to Oscar H. within 12 months. Both Sandra W. and
Oscar H. were present in court when this was done and both were
represented by counsel.
Section 2–28 of the Juvenile Court Act (705 ILCS 405/2–28(2)
(West 1996)) provides that permanency hearings are to be conducted
every 12 months following the initial permanency hearing, more
frequently if necessary, until the permanency plan and goal have been
achieved. In accordance with that requirement, four additional
permanency hearings were conducted by the circuit court between
1998 and 2001. Throughout these proceedings, the goal remained
returning L.W. to Oscar H.
Another permanency hearing was held in February of 2002.
Following that hearing, a hearing officer recommended a new goal:
substitute care pending a determination by the court as to whether the
biological parents’ parental rights should be terminated and a
guardian appointed with authority to consent to L.W.’s adoption.
Oscar H., through his attorney, objected to this recommendation,
arguing that the other children he had fathered with Sandra W. reside
with him, he had proven his ability to care for those children and for
L.W., and it would be in L.W.’s best interests for her to come live
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with him as well. In Oscar H.’s view, the appropriate permanency
goal should have been return of L.W. to him within 5 months.
The circuit court rejected Oscar H.’s arguments and entered a
permanency order setting as a goal the placement of L.W. with a
private guardian. The intended guardian was a nonrelative foster
parent with whom L.W. had been living since shortly after her birth.
The reasons stated in the order for selecting this goal and rejecting
previous goals were that L.W., who was then five, had lived with the
foster parent nearly her entire life; L.W.’s mother was not working
toward reunification; L.W.’s father, Oscar H., had not made
reasonable progress toward reunification; and the foster parent would
allow continued contact with L.W.’s biological family. The planned
date for achievement of the goal was the following October.
In the months which followed, the public guardian sought and
was granted approval to allow L.W. to move out of state with her
foster parent. At the end of the year, the court entered a new
permanency order setting as a goal substitute care pending a
determination as to whether the biological parents’ parental rights
should be terminated. The reasons given for this goal were that L.W.,
then six, had lived in “a non-relation, specialized home” since 1996;
she had special needs; and her parents had “participated in services
but *** not made substantial progress toward reunification.” The
deadline for achieving this goal was March of 2003.
When March 2003 arrived, the State filed a petition under section
2–29 of the Juvenile Court Act (705 ILCS 405/2–29 (West 1996))
seeking appointment of a guardian with authorization to consent to
L.W.’s adoption under the Adoption Act (750 ILCS 50/0.01 et seq.
(West 1996)). The petition alleged that in February of 1997, L.W. was
found by the court to have been abused, and that both of L.W.’s
parents were unfit because they had failed to maintain a reasonable
degree of interest, concern or responsibility for the child’s welfare
(see 750 ILCS 50/1(D)(b) (West 1996)) and had not made reasonable
efforts to correct the conditions that were the basis for the removal of
the child from them or made reasonable progress toward return of the
child to them (see 750 ILCS 50/1(D)(m) (West 1996)). The petition
further alleged that L.W.’s mother was also unfit for the additional
reasons that she had failed to protect L.W. from conditions in the
child’s environment injurious to her welfare (see 750 ILCS
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50/1(D)(g) (West 1996)) and that she was an habitual drunk or a drug
addict (see 750 ILCS 50/1(D)(k) (West 1996)). Finally, the petition
asserted that it would be in the child’s best interests if a guardian
were appointed with the right to consent to her adoption.
A hearing on the State’s petition was convened on August 15,
2003. At the outset of that hearing, the public guardian filed a motion
in limine to exclude evidence regarding Oscar H.’s custody and
parenting of the other children he had fathered with Sandra W.,
L.W.’s mother. Oscar H. opposed the motion, asserting that such
evidence was relevant to the issue of his parental fitness in this case.
The court then decided to continue the hearing for four days, until
August 19, 2003. In anticipation of the new hearing, the State advised
the court that it was dropping its claims that the mother was unfit
under subsections (g) and (k) of section 1(D) of the Adoption Act
(750 ILCS 50/1(D)(g), (D)(k) (West 1996)).
When the hearing resumed on August 19, the court granted the
public guardian’s in limine motion, holding that it would exclude
evidence regarding Oscar H.’s fitness as a parent with respect to his
other children. The court then proceeded to hear evidence on whether
Oscar H. and Sandra W. were unfit under subsections (b) or (m) of
section 1(D) of the Adoption Act (750 ILCS 50/1(D)(b), (D)(m)
(West 1996)), and, if unfit, whether it was in the best interests of
L.W. that a guardian be appointed with the power to consent to her
adoption.
To support its claim of unfitness, the State called as a witness
Mary Henderson, a case supervisor for Catholic Charities who had
been working on L.W.’s case since 1997. Henderson reviewed in
detail the history of the case, the details of L.W.’s condition,
education, and developmental progress; the parents’ circumstances;
their relationship with L.W.; the steps they had taken to correct the
conditions which were the basis for removal of the child from them;
and the progress they had made toward the return of the child to them.
Based on Henderson’s testimony and the documentary evidence in the
record, the court found that there was clear and convincing evidence
to support the allegation that Oscar H. and Sandra W. were unfit
under subsection (m) of section 1(D) of the Adoption Act (750 ILCS
50/1(D)(m) (West 1996)) because they had failed to make reasonable
efforts to correct the conditions that were the basis for the removal of
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L.W. from them and had not made reasonable progress toward her
return to them.
After making this finding, the court immediately proceeded to
consideration of the child’s best interests. On that question the court
heard testimony from the woman who had been serving as L.W.’s
foster mother. The foster mother described L.W.’s condition; the
conditions in the foster home; L.W.’s relationship with the foster
mother’s adopted son; L.W.’s involvement with the neighborhood,
school and community; and the foster mother’s desire to ultimately
adopt L.W.
The court also heard testimony from Gina Barrios, a social worker
from Catholic Charities currently assigned to L.W.’s case. Barrios
testified about her familiarity with L.W.’s case and detailed L.W.’s
current living conditions and relationship with her foster family.
Barrios reported that a neighbor boy was alleged to have touched
L.W. inappropriately, an incident reported to authorities by L.W.’s
foster mother. Barrios also spoke of L.W.’s medical and
developmental needs and how they were being addressed by the foster
mother. Barrios thought the foster mother should be permitted to
adopt L.W.
Based upon the foregoing evidence and after hearing closing
arguments, the circuit court concluded that it was in L.W.’s best
interests to terminate the parental rights of both Oscar H. and Sandra
W. and to appoint a guardian with the right to consent to L.W.’s
adoption. The court entered its termination order on August 20, 2003.
In that order, the court granted both parents the right to appeal.
Termination of parental rights is immediately appealable under Rule
307(a)(6) (188 Ill. 2d R. 307(a)(6)), and Sandra W. and Oscar H. each
filed separate notices of appeal within the time and in the manner
required by that rule.
Sandra W.’s appeal was ultimately found to be without merit, and
the appellate court affirmed the circuit court’s judgment terminating
her parental rights. That decision has not been challenged. This
appeal concerns only the challenge to the circuit court’s judgment
asserted by Oscar H.
As grounds for his appeal, Oscar H. raised two issues in the
appellate court: (1) whether the trial court erred when it granted the
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motion in limine to exclude evidence regarding his custody of the
four other children he had fathered with Sandra W.; and (2) whether
the trial court’s finding of parental unfitness was against the manifest
weight of the evidence in light of the fact that Oscar H. was found fit
to care for the other four children, some of whom suffer from the
same or similar medical problems as L.W. The public guardian cross-
appealed, arguing that the circuit court had erred in rejecting his claim
that Sandra W. and Oscar H. were unfit for the additional reason that
they had failed to maintain a reasonable degree of interest, concern or
responsibility for the child’s welfare within the meaning of section
1(D)(b) of the Adoption Act (750 ILCS 50/1(D)(b) (West 1996)).
The appellate court reversed and remanded. It held that the circuit
court’s judgment terminating Oscar H.’s parental rights could not
stand because compliance with section 2–21 of the Juvenile Court
Act (705 ILCS 405/2–21 (West 1996)) was a precondition to a
termination hearing and, in its view, the circuit court’s February 25,
1997, determination that L.W. was abused did not meet the
requirements of that statute. L.W., 362 Ill. App. 3d at 1115-16.
Whether the circuit court’s decision comported with section 2–21
was not questioned by any of the parties to the case. It was raised by
the appellate court sua sponte. In the appellate court’s view, the
circuit court’s determination failed to comply with section 2–21 for
two reasons. First, while Sandra W.’s culpability for the
circumstances leading to the court’s finding of abuse were apparent,
the circuit court had failed to identify any facts which would support
a determination that Oscar H., himself, was in any way responsible
for those circumstances. Second, the appellate court thought the
written order entered by the circuit court was technically deficient
because it did not comport with section 2–21’s requirement that a
court’s determination of abuse “shall be stated in writing with the
factual basis supporting that determination” (705 ILCS 405/2–21(1)
(West 1996)). L.W., 362 Ill. App. 3d at 1115-16.
After reaching this conclusion, the appellate court went on to
address whether evidence of Oscar H.’s success in gaining custody of
four of L.W.’s siblings should have been admitted. After rejecting an
argument by the public guardian that considerations of waiver should
bar consideration of the issue, the appellate court opined “that
evidence that Oscar H. has been found fit and given custody of four
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of L.W.’s siblings is material and relevant and is one factor that
should be considered by a court making a determination on the issue
of Oscar H.’s parental fitness and ability to parent and care for L.W.,
the child who is the subject of these proceedings.” L.W., 362 Ill. App.
3d at 1120. Accordingly, the appellate court held that should the State
elect to begin these proceedings anew in the circuit court, the circuit
court should not bar Oscar H. from presenting this evidence. The
court did not reach any of the other issues in the case.1
The State petitioned our court for leave to appeal. It contended
that the appellate court’s decision conflicted with this court’s opinion
in In re Arthur H., 212 Ill. 2d 441 (2004), because it was premised on
the erroneous view that salient inquiry at the adjudicatory hearing was
whether parents were at fault. According to the State, the critical
inquiry under Arthur H. is simply whether the child has been abused
or neglected, not who is responsible. The State next argued that the
appellate court’s decision conflicted with this court’s opinion in In re
Madison H., 215 Ill. 2d 364 (2005), and various appellate court
opinions because it failed to consider whether transcribed oral
findings or other sources in the record were sufficient to allow the
reviewing court to overlook the trial court’s failure to make the
written findings required by section 2–21(1) of the Juvenile Court Act
(705 ILCS 405/2–21(1) (West 1996)). The State also contended that
the appellate court’s decision misinterpreted section 2–21(2) of the
Juvenile Court Act (705 ILCS 405/2–21(2) (West 1996)) by
concluding that without the written findings required by section
2–21(1), a hearing on termination of parental rights cannot occur.
Finally, the State asserted that by addressing the propriety of the
motion in limine and considering what evidence would be admissible
at a possible future hearing, the appellate court exceeded the proper
boundaries of judicial review and issued an improper advisory
opinion.
1
The court’s opinion alluded to a constitutional challenge Oscar H. had
raised, but it provided no details regarding that challenge. It merely stated
that if the issue should arise in the trial court on remand, the trial court
should consider it in light of our opinion in In re D.W., 214 Ill. 2d 289
(2005). See L.W., 362 Ill. App. 3d at 1120.
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A petition for leave to appeal was also filed by the public
guardian. As had the State, the public guardian asserted that the
appellate court was wrong to overturn the judgment terminating
Oscar H.’s parental rights based on the failure of the circuit court’s
February 1997 determination to specify what acts of Oscar H. caused
the child to be abused. It agreed with the State’s contention that the
appellate court’s ruling conflicted with this court’s decision in In re
Arthur H., 212 Ill. 2d 441 (2004), but it also challenged the appellate
court’s decision on the additional grounds that the time for appealing
the initial determination of abuse or neglect had passed and the
appellate court lacked jurisdiction to revisit that determination. Even
if the court’s determination were subject to reexamination, the public
guardian contended, any deficiencies in the written findings entered
by the court were not necessarily fatal. The public guardian argued
that under this court’s decision in In re Madison H., 215 Ill. 2d 364
(2005), deficiencies in the court’s written order could be overcome by
transcribed oral findings or other sources in the record, and that when
the appellate court ruled as it did here, it did so without reviewing the
transcript of the February 1997 hearing on the petition for
adjudication of wardship.2 Because the appellate court did not have
the full basis for the circuit court’s adjudicatory ruling before it, the
public guardian asserted, that court did not know and could not have
known whether there was, in fact, a sufficient basis for the circuit
court’s ruling notwithstanding the absence of the written findings
required by statute.
The public guardian next took issue with the appellate court’s
judgment on the grounds that it appeared to have been predicated on
the mistaken belief that L.W. had actually been physically abused
prior to the February 1997 hearing, when she had not been. Finally,
the public guardian asserted that the appellate court’s resolution of the
2
The transcript of the February 25, 1997, hearing was not included in the
original record on appeal. Until the appellate court sua sponte made the
finding of abuse or neglect an issue on appeal, the parties did not know and
could not have foreseen that the transcript would be relevant to a review of
the judgment terminating Oscar H.’s parental rights. After the appellate
court’s ruling made the transcript relevant, the record was supplemented to
include it.
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motion in limine question conflicted with its prior holding in In re
M.C., 201 Ill. App. 3d 792, 798 (1990), that a parent’s ability to care
for another child is not relevant to the question of whether he is fit to
care for the child presently before the court.
This court denied both the State’s petition for leave to appeal and
the petition for leave to appeal filed by the public guardian. At the
same time, however, we entered supervisory orders directing the
appellate to vacate its judgment and to reconsider the cause in light
of our opinion in In re Arthur H., 212 Ill. 2d 441 (2004). In
accordance with our supervisory orders, entered at the end of March
2006, the appellate court filed orders vacating its judgment and
indicating that it would reconsider the case. The State and the public
guardian were granted leave to file supplemental briefs, and a reply
brief was filed by Oscar H.
Several months later, in September of 2006, the appellate court
filed a new opinion in the case. The new version was largely
unchanged from the prior version. The opinion revised the court’s
discussion of the requirements of section 2–21 of the Juvenile Court
Act (705 ILCS 405/2–21 (West 1996)) to include a reference to our
opinion in In re Arthur H., 212 Ill. 2d 441 (2004), but the overall
analysis remained unchanged. The court concluded that the circuit
court’s determination of abuse or neglect was not supported by the
requisite written findings and did not provide Oscar H. with notice of
the reasons supporting the determination of abuse or neglect. Because
the finding of abuse or neglect was deficient, the court opined that the
matter should not have proceeded to a hearing on the petition for
termination of parental rights. The court therefore reversed and
remanded to the circuit court for further proceedings. 367 Ill. App. 3d
at 854-55. In so doing, the court held, as it had originally, that
evidence that Oscar H. had been found fit and given custody of
L.W.’s siblings was material and relevant and should not have been
excluded. Correspondingly, the court continued to adhere to the
position that the evidence could be considered by the circuit court in
assessing Oscar H.’s fitness to parent L.W. should the State elect to
proceed with termination proceedings following remand. 367 Ill.
App. 3d at 858-59.
There being no significant change in the appellate court’s
judgment, the public guardian once again petitioned our court for
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leave to appeal based on the arguments it asserted in its original
petition for leave to appeal. The State did likewise. We granted both
petitions and consolidated them for briefing, argument and decision.
Before turning to the merits of these consolidated appeals, there
is one preliminary matter we must address. Oscar H. contends that
because our court denied the prior petitions for leave to appeal filed
by the State and the public guardian, principles of res judicata should
bar those entities from raising any of the same arguments now that the
matter is before us again. This argument is without merit. For res
judicata to apply, there must have been a final judgment on the merits
of the case. Denials of petitions for leave to appeal are not decisions
on the merits. People v. Ortiz, 196 Ill. 2d 236, 257 (2001). They
cannot be interpreted as reflecting approval or disapproval of a lower
court’s action. They signify only that four members of the court, for
reasons satisfactory to them, have not voted to grant leave to appeal.
See People v. Vance, 76 Ill. 2d 171, 183 (1979). The merits of the
arguments asserted by the State and public guardian are therefore
properly before us.
We turn then to the question of whether the appellate court erred
in setting aside the circuit court’s judgment terminating Oscar H.’s
parental rights to L.W. based on what it perceived as defects in the
circuit court’s order of February 25, 1997, finding L.W. to be abused.
The answer to this question is yes. The appellate court did so err. Had
Oscar H. wished to challenge the validity of the February 1997 order,
he had two opportunities to do so. First, he could have filed a petition
for leave to appeal from that order pursuant to Supreme Court Rule
306(a)(5) (155 Ill. 2d R. 306(a)(5)), governing appeals from
interlocutory orders affecting the care and custody of unemancipated
minors, if the appeal of such orders is not otherwise specifically
provided for elsewhere in these rules.3 Second, he could have
3
There is another rule pertaining to adjudications of wardship. Supreme
Court Rule 662(a) provides that “[a]n appeal may be taken to the Appellate
Court from an adjudication of wardship in the event that an order of
disposition has not been entered within 90 days of the adjudication of
wardship.” 134 Ill. 2d R. 662(a). In this case, however, there was no such
delay. The dispositional order was entered within 90 days of the
adjudication of wardship. The rulings were, in fact, entered simultaneously.
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challenged the finding of abuse by taking an appeal from the April 29,
1997, order adjudging L.W. a ward of the court, finding both parents
“unable for some reason other than financial circumstances alone to
care for, protect, train or discipline the minor,” and determining that
it was in L.W.’s best interests to remove her from her parents’
custody and care and placing her in DCFS custody. Dispositional
orders of this kind are regarded as final and appealable as of right.
See In re Faith B., 216 Ill. 2d 1, 3 (2005). Appealing a dispositional
order is the proper vehicle for challenging a finding of abuse or
neglect. See In re Arthur H., 212 Ill. 2d 441 (2004) (where a
permissive interlocutory appeal has not been sought or allowed).
Appeals from final judgments entered in proceedings under the
Juvenile Court Act, other than delinquent minor proceedings, are
governed by the rules applicable to civil cases. 134 Ill. 2d R. 660(b).
The rule pertaining to appeals from final judgments is Supreme Court
Rule 301 (155 Ill. 2d R. 301). Where an appeal is appropriate under
Rule 301, notice of appeal must be filed within 30 after entry of the
final judgment from which the appeal is being taken or 30 days after
entry of the order disposing of any posttrial motions which may have
been filed. 155 Ill. 2d R. 303(a)(1). No such notice of appeal was
filed here. Any error pertaining to the dispositional order has
therefore been forfeited. See In re R.A.B., 146 Ill. App. 3d 993, 996
(1986). More than that, the appellate court had no jurisdiction to go
back and reconsider whether it was proper when made. See In re
Janira T., 368 Ill. App. 3d 883, 891 (2006).
In challenging this conclusion, Oscar H. contends that it would be
anomalous to bar parties from seeking review of dispositional orders
after time for appeal has passed given that we have held that
dispositional orders may normally be modified at any time up to final
closing and discharge of the proceedings if the court finds that it
would be in the best interests of the child to make the modification.
See In re Austin W., 214 Ill. 2d 31, 43-44 (2005); 705 ILCS 405/2–23
(West 1996). What Oscar H. fails to appreciate is that asking an
appellate court to review an order of the circuit court on appeal is
fundamentally different from asking the circuit court itself to alter its
Rule 662(a) is therefore inapplicable.
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own judgment, and the two avenues of recourse are subject to entirely
different sets of rules and standards. Modifications, for example, must
be carried out in a way not inconsistent with section 2–28 of the
Juvenile Court Act (705 ILCS 405/2–28 (West 1996). 705 ILCS
405/2–23(2) (West 1996). That statute does not control review by the
appellate court. We note, moreover, that, unlike appeals,
modifications do not normally challenge the validity of the original
order. Rather, they are typically directed to considerations that arise
after the original dispositional order was entered. In re Austin W., 214
Ill. 2d at 45.4
Even if there had been some basis for the appellate court to reach
back and address the validity of the circuit court’s prior order, its
decision to reverse the circuit court’s judgment terminating Oscar
H.’s parental rights could not stand. It is true that the written order of
February 25, 1997, finding L.W. to be abused did not include a
statement of the factual basis supporting that determination, as
required by section 2–21(1) of the Juvenile Court Act (705 ILCS
405/2–21(1) (West 1996)). As noted earlier in this opinion, however,
the trial judge’s ruling was predicated on stipulated facts that were
read into the record, and the court clearly specified the facts it was
taking into account in making its decision. The stipulations and the
statements were, in turn, transcribed and included in the report of
proceedings. There was nothing speculative about the trial judge’s
actions. What she did and why she did it were clearly spelled out. The
lack of detail in the actual written order therefore worked no
prejudice on any of the parties. It was a purely technical defect.
This situation is directly analogous to the one present in In re
Madison H., 215 Ill. 2d 364 (2005), which concerned a trial court’s
failure to comply with a comparable written-explanation requirement
set forth in section 2–27(1) of the Juvenile Court Act (705 ILCS
4
A change in circumstances is not a statutory precondition to a court’s
exercise of its authority to modify a dispositional order (In re Austin W.,
214 Ill. 2d at 45), but Oscar H. has not cited and we have not found any
authority which would permit any party to challenge a dispositional order
after the time for an appeal has passed on grounds which could have been
raised on direct review but were not.
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405/2–27(1) (West 1996)). Noting that the purpose of the writing
requirement was to give the parties notice of the reasons forming the
court’s decision and to preserve the reasoning for appellate review,
we concluded that those purposes would be served just as well by
explicit oral findings stated during the hearing and then transcribed
and made part of the record. In re Madison H., 215 Ill. 2d at 374-75.
Accordingly, we concluded that where an oral pronouncement is
explicit and sufficient to advise the parties of the court’s reasoning,
the statutory requirement of a written explanation will be satisfied. In
re Madison H., 215 Ill. 2d at 377. We believe that rationale applies
with equal force here. See also In re Z.Z., 312 Ill. App. 3d 800, 803-
04 (2000). The appellate court therefore erred when it reversed the
circuit court’s termination judgment based on the circuit court’s prior
order of February 25, 1997. Rather than revisiting the prior order, the
appellate court should, instead, have decided Oscar H.’s challenge to
the termination judgment on the merits. Having failed to do so on two
prior occasions, it must do so now.
The final question raised by the petitions for leave to appeal filed
by the State and the public guardian, and the last issue we must
resolve, is whether the appellate court erred in holding that the circuit
court should not have granted the motion in limine regarding Oscar
H.’s custody of L.W.’s siblings. In considering this question, we
begin by noting that the matter has different significance under our
disposition than it did in the appellate court. Because the appellate
court reversed the termination judgment based on the defects it
perceived in the February 25, 1997, order, its discussion of the in
limine motion did not alter the outcome of the case. It merely
provided guidance to the circuit court in the event the State should
initiate new termination proceedings.
The situation is now different. Because we have concluded that
the termination judgment should not have been reversed based on the
February 25, 1997, order, the issue before us is not whether the
guidance given by the appellate court was correct. It is, instead,
whether the circuit court’s ruling on the in limine motion provides an
alternative basis for reversing that court’s judgment. We hold that it
does not.
Generally speaking, evidentiary motions, such as motions in
limine, are directed to the trial court’s discretion. A trial court’s ruling
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on such motions will not be disturbed on review absent an abuse of
that discretion. People v. Harvey, 211 Ill. 2d 368, 392 (2004). The
threshold for finding an abuse of discretion is high. A trial court will
not be found to have abused its discretion with respect to an
evidentiary ruling unless it can be said that no reasonable man would
take the view adopted by the court. See Clayton v. County of Cook,
346 Ill. App. 3d 367, 377 (2003). Moreover, even where an abuse of
discretion has occurred, it will not warrant reversal of the judgment
unless the record indicates the existence of substantial prejudice
affecting the outcome of the trial. Holston v. Sisters of the Third
Order of St. Francis, 165 Ill. 2d 150, 170-71 (1995).
Neither of these conditions was satisfied in this case. As we have
discussed, the State sought to find Oscar H. unfit on two grounds: that
he failed to maintain a reasonable degree of interest, concern or
responsibility for L.W.’s welfare (see 750 ILCS 50/1(D)(b) (West
1996)) and that he had not made reasonable efforts to correct the
conditions that were the basis for L.W.’s removal or made reasonable
progress toward her return to him (see 750 ILCS 50/1(D)(m) (West
1996)). Both of these grounds deal specifically with the steps Oscar
H. has taken with respect to L.W. How he has handled his parental
responsibilities with respect to L.W.’s siblings is not germane to that
question. We therefore cannot say that no reasonable person would
have taken the circuit court’s view in allowing the motion in limine
and excluding the evidence.
We note, moreover, that while the circuit court granted the motion
in limine, it nevertheless did hear testimony later in the proceedings
that custody of L.W.’s siblings had been returned to Oscar H. The fact
that Oscar H. was apparently fit to parent those children was therefore
before the circuit court notwithstanding the court’s ruling on the
motion in limine. Although Oscar H. may not have been allowed to
present the details of the care he provided to those other children, the
appropriate course when faced with such a ruling was to make an
offer of proof. Snelson v. Kamm, 204 Ill. 2d 1, 23-24 (2003).5 No such
5
An offer of proof is, in fact, normally mandatory in order to preserve
for review the question of whether a motion in limine was properly granted.
That requirement may be relaxed where it is apparent that the trial court
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offer was made. We therefore have no basis for ascertaining how, if
at all, that evidence may have altered the outcome of the case. As a
result, we cannot say that allowing the motion in limine resulted in
any material prejudice to Oscar H.
Before concluding our discussion, there is one final matter we
must address. The public guardian, as attorney for L.W., argues that
instead of remanding this cause to the appellate court for
consideration of the merits of Oscar H.’s challenge to circuit court’s
judgment terminating his parental rights, this court should address
that claim directly. We have declined a similar request by the public
guardian in In re Mark W., No. 104168 (April 3, 2008), a case
involving factual and procedural circumstances comparable to those
present in this case. After careful deliberation, we have decided to
decline direct review here as well. Nevertheless, mindful of the time-
sensitive nature of child custody proceedings, we accompany our
remand with the same directive we issued in In re Mark W. The
appellate court is to file its judgment in this matter within 60 days of
the issuance of this court’s mandate.
For the foregoing reasons, the judgment of the appellate court is
reversed, and the cause is remanded to that court for review, on the
merits, of the circuit court’s judgment terminating Oscar H.’s parental
rights. The appellate court is hereby directed to file its judgment in
this matter within 60 days of the issuance of this court’s mandate.
Reversed and remanded
with directions.
clearly understood the nature and character of the evidence sought to be
introduced. Dillon v. Evanston Hospital, 199 Ill. 2d 483, 495 (2002).
Although the appellate court believed this to be such a case (see 367 Ill.
App. 3d at 857), its analysis appears to have been based on the assumption
that the excluded evidence consisted only of the fitness determinations and
awards of custody made in the siblings’ cases. Based upon our review of
the record, it appears that the evidence Oscar H. sought to admit and which
the in limine ruling excluded extended to other details about Oscar H.’s
parenting ability, including his success in meeting social service
requirements.
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