                                  Illinois Official Reports

                                          Appellate Court



                               In re Ashli T., 2014 IL App (1st) 132504



Appellate Court              In re ASHLI T., a Minor, Respondent-Appellant (The People of the
Caption                      State of Illinois, Petitioner-Appellant, v. Tonesha M. and Scott T.,
                             Respondents-Appellees).



District & No.               First District, Second Division
                             Docket Nos. 1-13-2504, 1-13-2507 cons.



Filed                        January 21, 2014



Held                         On appeal from orders of the trial court granting sole legal custody of
(Note: This syllabus         respondent to her father, dismissing the State’s petition for
constitutes no part of the   adjudication of wardship and closing the proceedings, the dismissal of
opinion of the court but     the petition for adjudication of wardship was vacated and the cause
has been prepared by the     was remanded for further proceedings consistent with the Juvenile
Reporter of Decisions        Court Act, since the trial court had no authority to grant permanent
for the convenience of       custody without conducting adjudicatory and dispositional hearings
the reader.)                 and the finding that dismissal of the petition for adjudication of
                             wardship was in respondent’s best interest was clearly erroneous.



Decision Under               Appeal from the Circuit Court of Cook County, No. 13-JA-462; the
Review                       Hon. Robert Balanoff, Judge, presiding.




Judgment                     Order vacated; cause remanded.
     Counsel on               Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
     Appeal                   Mary P. Needham, and Nancy Kisicki, Assistant State’s Attorneys, of
                              counsel), for the People.

                              Abishi C. Cunningham, Jr., Public Defender, of Chicago (Evelyn G.
                              Baniewicz, Assistant Public Defender, of counsel), for appellee
                              Scott T.

                              Robert F. Harris, Public Guardian, of Chicago (Kass A. Plain and
                              Christopher J. Williams, of counsel), guardian ad litem.



     Panel                    JUSTICE SIMON delivered the judgment of the court, with opinion.
                              Presiding Justice Harris and Justice Pierce concurred in the judgment
                              and opinion.




                                                OPINION

¶1         Ashli T., through the office of the public guardian, and the State appeal from orders of the
       circuit court of Cook County granting sole legal and physical custody of Ashli to her father,
       Scott T., and dismissing the petition for adjudication of wardship filed as to Ashli by the State.
       On appeal, the public guardian and the State contend that the court did not have authority to
       grant permanent custody of Ashli to Scott without conducting adjudicatory and dispositional
       hearings and that the court’s finding that dismissal of the petition for adjudication of wardship
       was in Ashli’s best interest is clearly erroneous. For the reasons that follow, we vacate the
       order dismissing the petition for adjudication of wardship and closing the proceedings and
       remand the matter to the circuit court for further proceedings consistent with the Juvenile
       Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-1 et seq. (West 2012)).

¶2                                          BACKGROUND
¶3         On May 20, 2013, the State filed a petition for adjudication of wardship as to Ashli, who
       was born on March 29, 2013, and is the daughter of Tonesha M. and Scott. The State alleged
       that Ashli was abused and neglected and that her environment was injurious to her welfare.
       The State asserted that Ashli faced a substantial risk of physical injury because Tonesha had
       three other children in the custody of the Illinois Department of Children and Family Services
       (DCFS) based on findings of abuse and/or neglect and had not completed recommended
       services and paternity had not yet been established. The State also filed a motion for temporary

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     custody, asserting that there was probable cause to believe that Ashli was neglected and that
     there was an immediate and urgent necessity that she be taken into custody.
¶4       That same day, the circuit court conducted a hearing on the petition and motion. Scott
     testified that he believed he was Ashli’s father and requested a paternity test. Edwine Reese, an
     investigator for DCFS, testified that Tonesha had three children prior to Ashli and that none of
     those children were in her care and custody. Reports had been filed against Tonesha regarding
     her eldest daughter in 2008 for cuts, welts, and bruises and in 2009 for cuts, welts, bruises, and
     sexual penetration. Tonesha was convicted of criminal assault of her eldest daughter, served
     3½ years of a 7-year sentence, and was currently on parole. Tonesha had been found to be in
     need of anger management, substance abuse, and parenting services, as well as a psychological
     assessment and counseling, but she only completed some of the necessary services while
     incarcerated and was no longer participating in any of those services. Reese recommended
     temporary custody for Ashli because Scott’s paternity had not yet been established and there
     was a risk of harm to Ashli if she was returned to Tonesha’s custody and care.
¶5       Following the hearing, the court entered an order granting temporary custody of Ashli to
     DCFS, finding probable cause to believe that Ashli was abused and neglected and that an
     urgent and immediate necessity to remove Ashli from Tonesha’s custody existed due to
     Tonesha’s prior acts of abuse and failure to complete required services. The court also ordered
     a paternity test for Scott and supervised visits with Ashli for Scott and Tonesha.
¶6       On July 3, 2012, Scott filed a motion requesting an order finding that he was Ashli’s
     biological father, vacating the temporary custody order, finding that he was willing and able to
     care for Ashli, and returning Ashli to his care, custody, and control. Scott asserted that it was in
     Ashli’s best interest to be placed in his care and custody because he did not present any causes
     for concern as to Ashli’s safety, his home was safe and appropriate, he was willing and able to
     obey all reasonable terms and conditions attached to a protection order, he was willing to
     participate in any and all services recommended by DCFS, he was employed and earned a
     sufficient income to meet Ashli’s needs, he had formed a care plan with various family
     members to provide care to Ashli while he was at work, and he had successfully parented other
     children.
¶7       On July 10, 2013, the court conducted a hearing on Scott’s motion to vacate the temporary
     custody order. The State presented the results of a paternity test, which identified Scott as
     Ashli’s biological father, and Danika Williams, a case manager at Lutheran Child and Family
     Services, testified that she had conducted an assessment of Scott and determined that it was in
     Ashli’s best interests to be placed in his custody for the reasons set forth in his motion. During
     Williams’ testimony, the court asked Scott’s attorney if Scott was asking the court to “close the
     case,” and counsel responded that Scott was not. At the conclusion of the hearing, the court
     found that it was in Ashli’s best interest to be placed in Scott’s custody and that there was no
     immediate and urgent necessity to remove Ashli from his custody. The court also stated that it
     wanted to close the case that day, that it was going to conduct some research to determine
     whether it could do so, and that it would reconvene with the parties later that day.
¶8       When the parties reconvened, Scott’s attorney stated that he was not asking for dismissal of
     the petition for adjudication of wardship, but was asking for a finding that Scott was willing
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       and able to care for Ashli and that matters “then proceed in an expedited fashion through
       adjudication and disposition.” The court stated that it thought it was in Ashli’s best interest to
       dismiss the petition, that it was required by supreme court precedent to conduct a hearing as to
       whether doing so was in Ashli’s best interest prior to dismissing the petition, and that it was
       sua sponte ordering that a “best interests hearing” be conducted immediately. The court
       explained that it wanted to proceed in this fashion because it was preferable to limit a family’s
       interaction with the juvenile court system as much as possible. At this point, Scott’s attorney
       stated that Scott was now seeking to have the case closed that day.
¶9         Williams testified at the hearing that she believed it was in the best interests of Ashli, Scott,
       and the community to close the case and place Ashli in Scott’s custody that day. Tonesha
       testified that although Scott knew of her pregnancy and Ashli’s birth, he did not become
       involved in Ashli’s life until the petition for adjudication of wardship had been filed, and that
       she intended to pursue her rights as to Ashli in domestic relations court. Following the hearing,
       the court stated that it was in Ashli’s best interest to dismiss the petition for adjudication of
       wardship and place her in Scott’s custody, that it was going to amend the temporary custody
       order to reflect that there was no immediate or urgent necessity to place Ashli in the custody of
       DCFS, and that it was going to place Ashli in Scott’s custody and dismiss the petition.
¶ 10       The court entered various written orders on July 10, 2013. The court entered an order
       finding that Scott was Ashli’s biological father. The court also entered an order granting Scott
       custody of Ashli, finding there was no immediate and urgent necessity to remove Ashli from
       Scott’s care, stating that “the probable cause finding that the court entered on May 20, 2013
       stands,” and stating that the court would find an urgent and immediate necessity to remove
       Ashli from Tonesha’s care if Ashli was in her care. In addition, the court entered an order
       closing the proceedings, finding that the family was not in need of further monitoring by the
       court and that it was in Ashli’s best interest to close the case and ordering that the petition for
       adjudication of wardship was dismissed and that Scott was granted legal custody of Ashli. On
       July 11, 2013, the court amended its order to specify that it was granting “sole legal and
       physical custody” of Ashli to Scott.

¶ 11                                           ANALYSIS
¶ 12        The Juvenile Court Act sets forth the process by which a court will decide whether a child
       should be removed from his or her parents and made a ward of the court. In re Arthur H., 212
       Ill. 2d 441, 462 (2004). The State may initiate proceedings by filing a petition alleging that the
       minor is abused or neglected and that it is in the minor’s best interest to be adjudged a ward of
       the court. 705 ILCS 405/2-13 (West 2012). Upon the filing of a petition, the court shall
       conduct a temporary custody hearing to determine who will be granted temporary custody of
       the minor until further hearings are conducted as to whether the minor should be adjudged a
       ward of the court and placed in the permanent custody of someone other than the minor’s
       parents. 705 ILCS 405/2-10 (West 2012); In re A.H., 195 Ill. 2d 408, 417 (2001). These
       additional hearings consist of an “adjudicatory hearing,” a “dispositional hearing,” and a
       “permanency hearing.” A.H., 195 Ill. 2d at 417.

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¶ 13       At the temporary custody hearing, the court must first make a threshold determination as to
       whether there is probable cause to believe that the minor is abused or neglected. Id. If the court
       finds there is probable cause to believe that the minor is abused or neglected, then it must
       conduct a hearing at which all relevant parties shall testify. 705 ILCS 405/2-10(2) (West
       2012). Following a hearing, the court may release the minor into the custody of a parent,
       guardian, or custodian; release the minor pursuant to a protection order; or prescribe shelter
       care and order that the minor be kept in a suitable place designated by the court or a shelter care
       facility. Id. To prescribe shelter care, the court must find that doing so is “a matter of
       immediate and urgent necessity for the safety and protection of the minor” and that reasonable
       efforts have been made or cannot be made to prevent or eliminate the necessity of the minor’s
       removal from his or her home. Id. Once a temporary custody order has been entered, any party
       may file a motion to modify or vacate that order. 705 ILCS 405/2-10(9) (West 2012).
¶ 14       At an adjudicatory hearing, the court shall determine whether the minor is abused or
       neglected (705 ILCS 405/2-18 (West 2012)) and, if the court finds that the minor is abused or
       neglected, it shall conduct a dispositional hearing pursuant to section 2-22 of the Juvenile
       Court Act (705 ILCS 405/2-22 (West 2012)) to determine whether to make the minor a ward of
       the court (705 ILCS 405/2-21(2) (West 2012)). At a dispositional hearing, the court shall
       determine whether it is in the best interests of the minor and the public to make the minor a
       ward of the court and, if the minor is made a ward of the court, then the court shall enter a
       disposition order which serves the health, safety, and interests of the minor and the public. 705
       ILCS 405/2-22(1) (West 2012). If the minor is made a ward of the court due to abuse or
       neglect, the court may enter a disposition order: (1) continuing custody with the minor’s
       parent, guardian, or custodian; (2) placing the minor in legal custody or guardianship; (3)
       restoring custody to the parent, parents, guardian, or custodian on condition of compliance
       with an after-care plan; or (4) partially or completely emancipating the minor. 705 ILCS
       405/2-23(1)(a) (West 2012). Any disposition order may provide for protective supervision or
       include an order of protection. 705 ILCS 405/2-23(2) (West 2012).
¶ 15       In this case, the State initiated proceedings by filing a petition for adjudication of wardship
       and a motion for temporary custody, alleging that there was probable cause to believe that
       Ashli was abused and neglected because Tonesha previously abused her eldest daughter and
       had not since completed recommended services and paternity had not yet been established.
       The court conducted a temporary custody hearing, found there was probable cause to believe
       that Ashli was abused and neglected and there was an immediate and urgent necessity to
       remove Ashli from her home, and granted temporary custody of Ashli to DCFS. Scott filed a
       motion to vacate the temporary custody order, asserting that a paternity test confirmed that he
       was Ashli’s father and that it was in Ashli’s best interest to be placed in his custody, and the
       court conducted a hearing on the motion and found that it was in Ashli’s best interest to be
       placed in Scott’s custody. The court then conducted a “best interests hearing” and entered an
       amended temporary custody order granting “sole legal and physical custody” of Ashli to Scott.
       The court also entered an order closing the proceedings and dismissing the petition of
       adjudication of wardship.


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¶ 16       The public guardian and the State contend that the court could not grant permanent custody
       of Ashli to Scott without first conducting adjudicatory and dispositional hearings and that the
       court’s decision that it was in Ashli’s best interest to dismiss the petition is clearly erroneous
       because it was based on the incorrect belief that the court had entered a valid order granting
       Scott permanent custody of Ashli. Scott responds that the court could grant permanent custody
       prior to adjudication or disposition and that the court correctly determined that it was in Ashli’s
       best interest to be placed in his custody.
¶ 17       As an initial matter, we must clarify the procedural posture of this case to determine the
       standard of review which should be applied to the court’s decision to close the proceedings and
       dismiss the petition. The record shows that, after having conducted a hearing on Scott’s motion
       to vacate the temporary custody order, the court stated that it wanted to close the case that day
       and was going to conduct a “best interests hearing” because it was required to do so prior to
       closing the case by our supreme court’s holding in In re J.J., 142 Ill. 2d 1 (1991). In J.J., the
       court held that “when the State moves to dismiss a petition alleging abuse of a minor, the
       circuit court shall consider the merits of the motion and determine, on the record, whether the
       dismissal is in the best interests of the minor, the minor’s family, and the community.” Id. at 9.
       The court stated that “both the State’s Attorney and the court are charged with the duty of
       ensuring that, at each step of the wardship adjudication process, the best interests of the minor,
       the minor’s family and the community are served” and that the court “has not only the
       authority but the duty to determine whether the best interests of the minor will be served by
       dismissing a petition alleging abuse of a minor.” Id. at 8-9. Thus, when the court conducted a
       “best interests hearing” in this case, it was conducting a hearing as to whether to dismiss the
       petition, and not an adjudicatory or dispositional hearing. The decision to dismiss a petition on
       the basis of the minor’s best interest lies within the discretion of the circuit court. Id. at 11. As
       such, we review the court’s decision to dismiss the petition under an abuse of discretion
       standard. A court abuses its discretion when its ruling is arbitrary, fanciful, or unreasonable, or
       when no reasonable person would adopt its view. In re Marriage of Callahan, 2013 IL App
       (1st) 113751, ¶ 27.
¶ 18       Following the “best interests hearing,” the court found that it was in Ashli’s best interest to
       close the proceedings, dismiss the petition, and place her in Scott’s custody. To that effect, the
       court entered an amended temporary custody order granting Scott “sole legal and physical
       custody” of Ashli. However, the purpose of a temporary custody order is to decide who will
       have custody of the minor until permanent custody is determined. A.H., 195 Ill. 2d at 417. By
       its very nature, a temporary custody order does not confer permanent custody, but only
       provides temporary custody in anticipation of an order determining permanent custody to be
       entered later in the proceedings. Thus, the court did not confer permanent custody of Ashli to
       Scott in the amended temporary custody order, as the order would not have any legal effect
       once the proceedings were closed. As the court made clear in its written order and oral
       statements that it believed that it was in Ashli’s best interest to be placed in Scott’s permanent
       custody and removed from Tonesha’s custody, the court abused its discretion when it
       dismissed the petition and closed the proceedings without first placing Ashli in Scott’s
       permanent custody.
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¶ 19       Although Scott maintains that the court granted him permanent custody of Ashli, we
       determine that the record does not support a characterization of the amended temporary
       custody order as an order granting permanent custody. Following the conclusion of the “best
       interests hearing,” the court stated that it was going to amend the temporary custody order and
       dismiss the petition and it entered a written order which begins by stating that “the May 20,
       2013 temporary custody order is amended as follows.” Thus, the court’s oral statement and its
       written order both indicate that the court intended for its order granting custody to Scott to be a
       temporary, rather than permanent, custody order. To the extent that portion of the written order
       granting “sole legal and physical custody” of Ashli may indicate that the court intended to
       enter a permanent order, the court’s oral pronouncement that it was entering an amended
       temporary custody order controls over any conflict created by the written order. In re K.L.S-P.,
       381 Ill. App. 3d 194, 195 (2008).
¶ 20       In addition, a number of findings in the court’s order are made pursuant to the standards to
       be applied at a temporary custody hearing. At a temporary custody hearing, the court must
       determine if there is probable cause to believe that the minor is abused or neglected and if there
       is an immediate and urgent necessity to place the minor in shelter care. 705 ILCS 405/2-10(2)
       (West 2012). In its amended temporary custody order, the court found that there was no urgent
       and immediate necessity to remove Ashli from Scott’s care and stated that “the probable cause
       finding that the court entered on May 20, 2013 stands” and that the court would find an urgent
       and immediate necessity to remove Ashli from Tonesha’s care if Ashli was in her care. Thus,
       the court applied the standards relevant to a temporary custody determination in the amended
       temporary custody order. Further, the court’s order was entered in response to Scott’s motion
       to vacate the temporary custody order and prior to any adjudicatory or dispositional hearings or
       orders.
¶ 21       Moreover, even if the order granting Scott custody of Ashli could be characterized as a
       permanent custody order, the court could not enter such an order at this stage in the
       proceedings. After a minor is placed in temporary custody, the court shall conduct an
       adjudicatory hearing to determine if the minor is abused or neglected. 705 ILCS 405/2-18
       (West 2012); Arthur H., 212 Ill. 2d at 462. If the court finds that the minor is abused or
       neglected, then it shall conduct a dispositional hearing to determine whether to make the minor
       a ward of the court. 705 ILCS 405/2-21(2) (West 2012). If the minor is made a ward of the
       court, then the court shall enter a disposition order which best serves the health, safety, and
       interests of the minor. 705 ILCS 405/2-22(1) (West 2012). Possible dispositions include
       continued custody with the minor’s parents and restoration of custody to one or both parents.
       705 ILCS 405/2-23(1)(a) (West 2012).
¶ 22       In this case, the court did not conduct an adjudicatory hearing or make a determination as
       to whether Ashli was abused and did not conduct a dispositional hearing or enter a
       dispositional order. The court only found that there was probable cause to believe that Ashli
       was abused and then conducted a temporary custody hearing and issued a temporary custody
       order placing Ashli in the custody of DCFS. The court later amended the temporary custody
       order to place Ashli in Scott’s custody, but never found that Ashli was abused or made Ashli a
       ward of the court.
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¶ 23       Although Scott maintains that the Juvenile Court Act and the case law do not prohibit a
       court from granting permanent custody to a parent prior to adjudication and disposition,
       neither the Juvenile Court Act nor the case law authorizes a court to do so. Rather, the Juvenile
       Court Act distinguishes between temporary and permanent custody by requiring a court to find
       that there is probable cause to believe that the minor is abused or neglected at a temporary
       custody hearing to advance matters to the next procedural stage (705 ILCS 405/2-10 (West
       2012)) while requiring a court to find that the minor is abused or neglected to adjudicate the
       minor a ward of the court to advance proceedings to a dispositional hearing (705 ILCS
       405/2-21 (West 2012)). If a court could enter a permanent custody order on the basis of a
       probable cause finding of abuse or neglect at a temporary custody hearing, then those portions
       of the Juvenile Court Act relating to adjudicatory and dispositional hearings would be
       superfluous, as a court could enter an order determining permanent custody without ever
       advancing to those later stages in the proceedings. Further, a court could grant permanent
       custody of a minor to one parent over the other or to a person who is not a parent without ever
       finding that the minor was actually abused or neglected. As statutory provisions must be
       construed in light of the statute as a whole, keeping in mind the subject it addresses and the
       legislature’s intent (In re M.I., 2013 IL 113776, ¶ 15), and so that no part of the statute is
       rendered meaningless or superfluous (In re Detention of Stanbridge, 2012 IL 112337, ¶ 70),
       we determine that the court could not have entered a permanent custody order at this stage in
       the proceedings.
¶ 24       In reaching that determination, we have considered In re C.L., 384 Ill. App. 3d 689, 695-97
       (2008), in which the appellate court held that the circuit court could close the juvenile court
       proceedings as to two minors without making the minors wards of the court, but then could not
       designate the father the legal guardian, enter orders as to the parents’ fitness, or enter a
       visitation order after the case had been closed. Although this court affirmed the circuit court’s
       decision to close the case prior to making the minors wards of the court, it did so in light of the
       ongoing divorce proceedings between the minors’ parents and the understanding that parental
       issues would be addressed by the divorce court. Id. at 695-96. In this case, there are no ongoing
       divorce proceedings in which matters of custody and parenting will be resolved. Also, in
       vacating the orders as to guardianship, fitness, and visitation, this court stated that dispositional
       orders “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.” Id. at 697.
       Thus, the reasoning in C.L. supports our determination that the court in this case could not have
       entered a permanent custody order at this stage in the proceedings.




¶ 25                                       CONCLUSION
¶ 26      Accordingly, we vacate the circuit court’s order dismissing the petition of adjudication of
       wardship and closing the proceedings and remand the matter to the court for further
       proceedings consistent with the Juvenile Court Act.

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¶ 27   Order vacated; cause remanded.




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