Child Law

(Court opinion corrected 12/7/16.) Court found respondent mother was a fit parent to her 2 children, but court awarded temporary custody and guardianship to DCFS. Appellate court reversed and remanded to allow circuit court to enter specific findings consistent with Section 2-27(1) of Juvenile Court Act. The best interest standard governs determination of whether an adjudicated minor should be made a ward of the court and, if so, the determination of minor's proper disposition. Placement of minor with a 3rd party requires prerequisite consideration of parental fitness. Section 2-27(1) of Juvenile Court Act does not authorize placing a ward of court with a 3rd party absent a finding of parental unfitness, inability, or unwillingness to care for the minor. (KARMEIER, THOMAS, KILBRIDE, GARMAN, BURKE, and THEIS, concurring.)

(Court opinion corrected 11/8/16.) Respondent mother appeals from orders terminating her parental rights as to her 2 minor children, arguing that record does not demonstrate compliance with the Indian Child Welfare Act (ICWA). Respondent father filed separate appeal, arguing that factual findings as to 1 minor child are against manifest weight of evidence. Remanded for circuit court to make factual determination as to whether 2 minors are Indian children within meaning of ICWA, as circuit court had reason to know that 2 minors may be Indian children, triggering the notice requirements of Section 1912(a) of ICWA. When notice provisions of ICWA are not complied with, remedy is to reverse circuit court's orders as to foster placement of child and termination of parental rights and remand to begin proceedings anew. (CUNNINGHAM and ROCHFORD, concurring.)

Juvenile court entered adjudication order finding 3-year-old and 1-year-old abused and neglected due to injurious environment and substantial risk of physical injury. Father of minors testified that DVD marked as People's Exhibit was a video of Respondent mother abusing his 3-year-old daughter, which showed Respondent repeatedly hitting child with a spatula and stick on various parts of her body while dragging her across the floor. Minor's father and DCFS investigator both testified that video was accurate portrayal of the 2 persons shown on the video, and Respondent admitting to having personal knowledge of incident shown in video and to being present at time video was taken. Thus, camera used to record video was operational at the time and was able to record sufficiently clearly so that persons in video and their actions were identifiable. No evidence that video had been altered or tampered with to render it unreliable or untrustworthy. Thus, juvenile court did not abuse its discretion in admitting video, and its adjudication findings were not against manifest weight of evidence. (LAMPKIN and REYES, concurring.)

DCFS filed juvenile petition alleging that minor child was neglected, and court found child neglected and that child's mother remained dispositionally unfit. Procedural command in Section 2-10.1 of Juvenile Court Act, that DCFS "shall" file a service plan with court 45 days after minor's placement in shelter care, is directory and not mandatory. Thus, the fact that DCFS did not file service plan within 45 days of placement or prior to disposition does not deprive court of authority to order respondent parent to complete certain tasks as part of its dispositional ruling.(McDADE and WRIGHT, concurring.)

Counsel for Respondent mother in abuse and neglect proceedings moved for leave to withdraw under U.S. Supreme Court's 1987 decision in Pennsylvania v. Finley, based on conclusion that there are no meritorious issues raised in appeal. The U.S. Supreme Court's 1967 decision in Anders v. California, and not the Finley decision, provides the correct procedure where counsel seeks to withdraw from representation on direct appeal from orders affecting parental rights under Juvenile Court Act. Anders decision applies because it puts indigent appellants on same footing as those able to afford private counsel. After review of record and counsel's brief, appellate court finds no issues of arguable merit and thus grants motion to withdraw. (NEVILLE and PI(ERCE, concurring.)

(Modified upon denial of rehearing 11/1/16.) Defendant was convicted of aggravated criminal sexual assault committed when he was age 15. Amendment to Juvenile Court Act, effective 1/1/16, making minimum age for mandatory transfer 16 rather than 15, is a procedural change which applies to cases on direct appeal. Under the amended Act, juvenile court should have held a hearing under Section 5-805 of the Act before transferring the prosecution of the case against Defendant to the criminal court. Sentence is vacated, and case remanded to juvenile court for State to exercise its discretion to decide whether to file a petition to transfer case to criminal court for sentencing.(PIERCE and SIMON, concurring.)

(Court opinion corrected 10/18/16.) Respondent was found in violation of his misdemeanor probation and was committed to Department of Juvenile Justice. Amendment to Juvenile Court Act, which states that a juvenile cannot be sentenced to DJJ for a midsdemeanor offense, was effective on 1/1/2016. When that section was amended thew legislature could have, but did not, amend Section 720(4) to prohibit commitment to DJJ for probation violation. Thus, court's order committing Respondent to DJJ was authorized. (MASON, concurring; HYMAN, dissenting in part.)

Court found Respondent father to be an unfit parent and terminating his parental rights as to his minor children. Court found father unfit on basis of "extreme cruelty" under Section 1D(e) of Adoption Act, although father did not commit an act of physical cruelty directly to the minors. Parents had history of domestic violence in front of the children, and 4-year-old child witnessed father violently kill mother, after an argument and in act of rage, by repeatedly hitting her with a metal curling bar. This conduct , resulting in death of mother, was sufficient to be considered "extreme cruelty" to all 3 minor children, within meaning of Adoption Act.(LYTTON and SCHMIDT, concurring.)

(Court opinion corrected 10/4/16.) After bench trial, court adjudicated Respondent a delinquent minor, on grounds that he committed offenses of vehicular invasion, burglary, and theft. Evidence did not establish that Respondent entered vehicle "by force" and thus finding of delinquency is reversed as to vehicular invasion offense. In opening unlocked taxi door, Respondent did not exercise constraint or compulsion over taxi driver or his taxi, and Respondent made no showing of strength, power, or violence, or threat to do so. (HOFFMAN and DELORT, concurring.)

Court entered order terminating parental rights of father. State's service by publication listed incorrect last name of minor and minor's mother. Thus, service by publication was defective because it did not substantially comply with Section 16-2 of Juvenile Court Act, and thus did not confer trial court with personal jurisdiction over the father. THus, notice of publication was not sufficient to confer trial court with personal jurisdiction over the father, and all orders entered in case prior to the father's appearance are void. Father's appearance resulted only in prospective waiver of service and personal jurisdiction over him, and did not retroactively waive those objections and validate orders entered prior to his appearance. (McBRIDE and BURKE, concurring.)