{ "id": 251852, "name": "In re J.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. J.S. et al., Respondents-Appellants)", "name_abbreviation": "J.S. v. J.S.", "decision_date": "1995-05-31", "docket_number": "Nos. 2\u201494\u20140785, 2\u201494\u20140818 cons", "first_page": "219", "last_page": "225", "citations": [ { "type": "official", "cite": "272 Ill. App. 3d 219" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "233 Ill. App. 3d 617", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5195352 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/233/0617-01" ] }, { "cite": "223 Ill. App. 3d 543", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5254579 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0543-01" ] }, { "cite": "138 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499112 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0418-01" ] }, { "cite": "163 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477978 ], "pin_cites": [ { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0263-01" ] }, { "cite": "191 Ill. App. 3d 415", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2510228 ], "year": 1994, "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0415-01" ] }, { "cite": "109 Ill. 2d 129", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3125654 ], "year": 1989, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0129-01" ] }, { "cite": "387 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11333627 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "30-31" }, { "page": "548" }, { "page": "33" }, { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/us/387/0001-01" ] }, { "cite": "216 Ill. App. 3d 896", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5290425 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "898" }, { "page": "898" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0896-01" ] } ], "analysis": { "cardinality": 553, "char_count": 13442, "ocr_confidence": 0.735, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.33786352022839944 }, "sha256": "d57bb8eede21fd0fb64a26c61097c81dc3d4c09c51099019fa9cd016d16d205c", "simhash": "1:00bbb7af476f9c25", "word_count": 2334 }, "last_updated": "2023-07-14T18:46:33.224419+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re J.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. J.S. et al., Respondents-Appellants)." ], "opinions": [ { "text": "JUSTICE THOMAS\ndelivered the opinion of the court:\nThe respondents, J.S. and C.S. (parents), filed separate appeals from an order of the circuit court of Du Page County dated April 18, 1994, entered in both proceedings below, which removed J.S. and T.S. (minor children) from their custody and placed them in foster care. The appeals were consolidated for review. We reverse.\nThe record reveals the relevant facts to be as follows. On July 30, 1993, the State filed two petitions alleging the minor children to be neglected minors pursuant to section 802 \u2014 3 of the Juvenile Court Act of 1987 (Act) (111. Rev. Stat. 1989, ch. 37, par. 802 \u2014 3 (now codified, as amended, at 705 ILCS 405/2 \u2014 3 (West Supp. 1993))) and requesting that they be made wards of the court. At a dispositional hearing held on October 18, 1993, the trial court entered an order in both proceedings adjudicating the minor children neglected and making them wards of the court, with guardianship to the Department of Children and Family Services (DCFS). The trial court indicated at the hearing that custody of the minor children would remain with their parents.\nOn December 6, 1993, the trial court entered an order which removed the minor children from the custody of the parents and granted DCFS both custody and guardianship of the minor ch\u00fcdren instanter. The court denied the parents\u2019 subsequent motions for reconsideration. On February 1, 1994, the court ordered the return of the minor children to the custody of the parents instanter.\nOn April 18, 1994, the trial court again entered an order that the minors be removed from the custody of the parents. The parents were not present at the time. The minor children were removed from their parents\u2019 custody two days later. That day, the parents appeared in court with counsel on an emergency basis, at which time they testified that they had not been informed that they were to be in court on April 18, 1994, and requested the immediate return of their children to their custody. The parents subsequently filed motions to vacate the April 18, 1994, order on the grounds that no petition requesting a change of custody had been filed by the State (705 ILCS 405/2 \u2014 13 (West Supp. 1993)), nor were they given notice and an opportunity to be heard by the court regarding the issue of a change of custody (705 ILCS 405/2 \u2014 28 (West Supp. 1993)).\nHearing on the motions to vacate was set for April 25, 1994, at which time the trial court determined that the parents did not receive notice of the April 18, 1994, proceedings, but continued the matter until the next day for a ruling with respect to the motions to vacate. On April 26, 1994, the State moved to strike the motions to vacate. The State argued that DCFS, as legal guardian of the minor children, did not have to file a motion to change custody- and did not have to provide notice to the parents. Counsel for the parents argued that the parents should have received notice prior to having the children removed from their custody. The trial court granted the motion to strike; nevertheless, it allowed for a custody hearing. The trial judge stated:\n\"Here is what I\u2019m going to do and why I\u2019m going to do it. In terms of the technical motion to vacate, which you filed, I\u2019m going to grant the motion to strike.\nBut in my view that is not the end of the proceedings for today.\n* * *\nHere is what I\u2019m going to allow. *** [Although we\u2019re not an equity court, I think that we have to try to do equity and be fair in how things are done consistent with the best interest of the minor children.\nI\u2019m going to allow you to present any evidence that you wish to that you could have presented on Monday as to why this shouldn\u2019t happen, *** Go ahead and present that now.\n* * *\nI recognize that this hearing might take some time, but I also think it\u2019s our responsibility to try to do what is in the best interest, and that is what we\u2019re going to do.\u201d\nThe trial judge went on to state that he did not \"believe that necessarily the notice had to be given.\u201d Following a lengthy hearing, the trial court ruled that its April 18, 1994, order to remove the minor children from their parents\u2019 custody would stand. The parents\u2019 subsequent motions for reconsideration were denied.\nOn appeal, the parents contend: (1) that their due process rights were violated when their minor children were taken from their custody without a petition for a change of custody ever having been filed, without proper notice to attend the April 18, 1994, proceedings ever having been received, and without a custody hearing ever having been held prior to the entry of the April 18, 1994, order removing the children from their custody; and (2) that the trial court abused its discretion in removing the children from their custody when it made no showing or finding that the parental conduct at issue adversely affected the best interests of the children.\nThe parents first argue that the April 18, 1994, order removing the minor children from their custody should be reversed because of the violation of their due process rights. We agree.\nThe basic requirements of due process and fairness must be satisfied in juvenile court proceedings. (In re E.D. McC. (1991), 216 Ill. App. 3d 896, 898, citing In re Application of Gault (1967), 387 U.S. 1, 30-31, 18 L. Ed. 2d 527, 548, 87 S. Cf. 1428, 1445.) In a juvenile proceeding, due process requires adequate notice to a minor and his or her parents. In re E.D. McC., 216 Ill. App. 3d at 898, citing Gault, 387 U.S. at 33, 18 L. Ed. 2d at 549, 87 S. Ct. at 1446-47; In re J.P.J. (1985), 109 Ill. 2d 129, 135; In re J.K. (1989), 191 Ill. App. 3d 415, 417; see also In re C.R.H. (1994), 163 Ill. 2d 263, 269 (\"a minor and his or her parents have a constitutional right of due process to receive adequate notice of a juvenile proceeding\u201d).\nThe State argues that the due process requirements relative to the adjudicatory stage of juvenile proceedings are not the same in a dispositional hearing and that a lower standard of due process applies in a dispositional hearing. The State cites In re Bardwell (1985), 138 Ill. App. 3d 418, and In re S.M. (1992), 223 Ill. App. 3d 543, in support of its argument. Both Bardwell and In re S.M., however, stand for the post-adjudicatory relaxation of due process requirements with respect to the factual content of a petition to change custody. They do not eliminate the basic requirement of notice to the minor or his or her parents of a change in custody request.\nIn the present action, the record shows that the due process rights of the minors and their parents were not violated at the adjudicatory stage. The State provided notice to the minors\u2019 parents by the filing of the initial petitions alleging neglect. The minors and their parents had notice and an opportunity to be heard. However, the record does show that the due process rights of the minors and their parents were later violated. They received no notice to appear before the trial court on April 18, 1994, and no opportunity to be heard before the court ordered custody to be taken from the parents. Thus, we find that their due process rights were violated.\nWe now consider whether a written petition for a change of custody was necessitated. The record evidences that the parents regained legal custody of the minors on February 1, 1994. The State did not file a written petition for a change of custody with the court prior to the court\u2019s having ordered the removal of custody from the parents on April 18, 1994. The parents argue that a written petition for a change of custody was required. The State argues that its verbal request was sufficient.\nSection 2 \u2014 28 of the Act governs court proceedings to review dispositional orders. (705 ILCS 405/2 \u2014 28 (West Supp. 1993).) Section 2 \u2014 28(4) reads, in relevant part, as follows:\n\"The minor or any person interested in the minor may apply to the court for a change in custody of the minor and the appointment of a new custodian or guardian of the person or for the restoration of the minor to the custody of his parents or former guardian or custodian. *** No legal custodian or guardian of the person may be removed without his consent until given notice and an opportunity to be heard by the court.\u201d 705 ILCS 405/2 \u2014 28(4) (West Supp. 1993).\nAlthough this statutory provision does not expressly state that the application for a change in custody involves the filing of a written petition, case law indicates that this provision does contemplate the filing of a written petition for a change of custody. See Bardwell, 138 Ill. App. 3d 418 (after minor was adjudicated delinquent and Department of Corrections made legal custodian of minor, minor\u2019s parents sought to regain legal custody by the filing of a petition for a change in legal custody); In re S.M., 223 Ill. App. 3d 543 (after minor was adjudicated abused, and trial court later ordered return of custody to minor\u2019s mother, the State sought to have the custody removed from mother by filing a petition for a change of custody).\nIn any event, section 2 \u2014 28(4) of the Act expressly requires that the parents receive notice and an opportunity to be heard prior to the removal of the minors from their legal custody. Again, we find that was not afforded.\nThe State argues that the failure to provide notice to the parents to appear at the April 18, 1994, proceedings is not reversible error. In support of this argument, the State cites In re Marriage of Gordon (1992), 233 Ill. App. 3d 617. In Gordon, a father filed a petition for an emergency order of protection for his child from the child\u2019s mother, alleging, in part, that prior notice of the petition to the mother would have aggravated her alleged abuse of the minor. The trial court conducted an emergency ex parte hearing without notice to the mother and entered an order removing the child from the mother\u2019s care. We find Gordon to be distinguishable from the action before us. The April 18, 1994, proceeding did not occur as a result of any such emergency requiring the physical protection of the minors. Consequently, it need not have been conducted without prior notice to the parents. Gordon is further distinguishable as it dealt with another statute, the Illinois Domestic Violence Act of 1986 (Ill. Rev. Stat. 1989, ch. 40, par. 2311 \u2014 1 et seq. (now 750 ILCS 60/101 et seq. (West 1992))). Finally, in Gordon, the issue of custody was reserved at the ex parte hearing, whereas here it was decided at the April 18, 1994, proceedings.\nWhen the trial court was presented with the parents\u2019 motion to vacate its April 18, 1994, order, the court acknowledged the lack of notice to the parents, but nevertheless granted the State\u2019s motion to strike the parents\u2019 motion to vacate. In light of the obvious violation of the parents\u2019 due process rights, we find that the trial court should have denied the State\u2019s motion to strike and granted the motion to vacate the April 18, 1994, order. Custody of the minors should not have been removed pursuant to the April 18, 1994, order. We cannot agree with the State\u2019s assertion that any error committed by the court on April 18, 1994, was harmless.\nFurthermore, we necessarily find that the custody hearing which the trial court allowed after its improper denial of the motion to vacate, out of \"fairness\u201d to the parents, was a nullity. Had the trial court determined through the course of the hearing that it would be in the best interests of the minors that legal custody rest with their parents, one is left to wonder which order would have been controlling, the April 18, 1994, order removing custody or an April 26, 1994, order awarding custody to the parents? That question is illustrative of the fallacy of the trial court\u2019s action in proceeding to conduct a custody hearing without first granting the parents\u2019 motion to vacate. Proceeding with a custody hearing on April 26, 1994, did not cure the due process violations with respect to the April 18, 1994, proceedings, as the State contends.\nSince we have determined that the custody hearing conducted on April 26, 1994, was a nullity, we need not address the remaining issue on appeal as to whether the trial court abused its discretion in allowing its order removing the children from the custody of their parents to stand following the hearing. In addition, since the hearing was a nullity, any order resulting from that hearing was likewise a nullity.\nFor the foregoing reasons, we reverse the trial court\u2019s order of April 18, 1994, entered in both proceedings below, which removed the minor children from the custody of their parents. The State, as guardian of the minors, is at liberty to seek a change of custody in accordance with due process requirements, including the filing of a written petition for a change of custody, and providing the parents with notice and an opportunity to be heard.\nReversed.\nGEIGER and DOYLE, JJ., concur.", "type": "majority", "author": "JUSTICE THOMAS" } ], "attorneys": [ "Kenneth W. Torluemke, Public Defender, of Wheaton (Jeanine F. Tobin, Assistant Public Defender, of counsel), for appellants.", "Anthony M. Peccarelli, State\u2019s Attorney, of Wheaton (William L. Brow-ers, Robert J. Biderman, and Elliott Turpin, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "In re J.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. J.S. et al., Respondents-Appellants).\nSecond District\nNos. 2 \u2014 94\u20140785, 2 \u2014 94\u20140818 cons.\nOpinion filed May 31, 1995.\nKenneth W. Torluemke, Public Defender, of Wheaton (Jeanine F. Tobin, Assistant Public Defender, of counsel), for appellants.\nAnthony M. Peccarelli, State\u2019s Attorney, of Wheaton (William L. Brow-ers, Robert J. Biderman, and Elliott Turpin, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0219-01", "first_page_order": 237, "last_page_order": 243 }