{ "id": 3307865, "name": "In re TERRY WHEAT, a Minor.-(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. TERRY WHEAT et al., Respondents-Appellants.)", "name_abbreviation": "People v. Wheat", "decision_date": "1979-01-04", "docket_number": "Nos. 76-837, 76-1130 cons.", "first_page": "471", "last_page": "478", "citations": [ { "type": "official", "cite": "68 Ill. App. 3d 471" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "147 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "pin_cites": [ { "page": "298" } ], "opinion_index": 0 }, { "cite": "12 Ill. 2d 581", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2779011 ], "year": 1969, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/12/0581-01" ] }, { "cite": "32 L. Ed. 2d 15", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6170178 ], "weight": 2, "pin_cites": [ { "page": "35" }, { "page": "1541-42" } ], "opinion_index": 0, "case_paths": [ "/us/406/0205-01" ] }, { "cite": "408 U.S. 205", "category": "reporters:federal", "reporter": "U.S.", "pin_cites": [ { "page": "232" } ], "opinion_index": 0 }, { "cite": "364 N.E.2d 303", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 300", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5634304 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0300-01" ] }, { "cite": "332 N.E.2d 553", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 224", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2625408 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0224-01" ] }, { "cite": "359 N.E.2d 183", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1975, "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 1040", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2810401 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/1040-01" ] }, { "cite": "365 N.E.2d 647", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill. App. 3d 306", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5641285 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0306-01" ] }, { "cite": "247 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "42 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2846784 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/42/0201-01" ] }, { "cite": "267 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 2d 1078", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2906398 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/131/1078-01" ] } ], "analysis": { "cardinality": 682, "char_count": 15795, "ocr_confidence": 0.885, "pagerank": { "raw": 2.7461299519406785e-07, "percentile": 0.8323595313858067 }, "sha256": "ffc0ce9b6d2e628e331e6edb350dd1b764caa679651bf71b59722481af55433c", "simhash": "1:aca9b7b730fefc57", "word_count": 2632 }, "last_updated": "2023-07-14T14:49:10.381789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re TERRY WHEAT, a Minor.\u2014(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. TERRY WHEAT et al., Respondents-Appellants.)" ], "opinions": [ { "text": "Mr. JUSTICE LINN\ndelivered the opinion of the court:\nJohn and Paula Wheat\u2019s judgment for divorce awarded to John sole custody of the couple\u2019s minor child, Terry Wheat. Subsequently, a petition was filed under the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 701 \u2014 1 et seq.) against John Wheat, alleging that Terry was a neglected minor and requesting that Terry be adjudicated a ward of the court.\nAt the conclusion of adjudicatory and dispositional hearings, in which both John and Paula Wheat participated, the trial court: (1) found Terry to be a neglected minor; (2) adjudicated her a ward of the court; and (3) awarded Terry into the custody of the Illinois Department of Children and Family Services.\nIn this consolidated appeal, Paula Wheat contends: (1) she was deprived of the right to be heard at the adjudicatory hearing; (2) once the finding of neglect was entered against John Wheat, she became entitled automatically to Terry\u2019s custody, as Terry\u2019s natural mother; and (3) the trial court erred when it allegedly treated the finding of neglect entered against John Wheat as binding upon her. Terry Wheat contends that she was deprived of the right to counsel (Ill. Rev. Stat. 1975, ch. 37, par. 701\u2014 20) at the adjudicatory and dispositional hearings.\nWe affirm the trial court.\nIn July 1975, John and Paula Wheat obtained a judgment for divorce in the State of Illinois. In accordance with the terms of their divorce judgment, John was awarded sole custody of 14-year-old Terry Wheat. Following the divorce proceedings, Paula Wheat resided in Ironton, Missouri. John Wheat, Terry and John\u2019s second wife, Paula\u2019s sister, resided in Carpentersville, Illinois.\nOn December 4,1975, a neglect petition was filed in the circuit court of Cook County requesting that Terry be adjudicated a ward of the court. The petition alleged that Terry\u2019s environment with her father was injurious to her welfare (Ill. Rev. Stat. 1975, ch. 37, par. 702 \u2014 4(l)(b)). At the preliminary hearing conducted December 4, the public defender was appointed to represent John Wheat. John Wheat denied the allegations of the neglect petition. By agreement of the parties, the trial court awarded temporary custody of Terry to the Illinois Department of Children and Family Services and appointed a guardian ad litem for her. The neglect petition was then scheduled for a future adjudicatory hearing.\nPaula Wheat appeared for the first time at the adjudicatory hearing held February 6, 1976. The public defender was appointed to represent Paula Wheat\u2019s interests in the proceedings, and private counsel, Francis Pistorio, was given leave to substitute his appearance, in place of that of the public defender, as John Wheat\u2019s attorney. Terry Wheat was not represented by counsel.\nAt the outset of the adjudicatory hearing, the State requested leave to amend the neglect petition. The original petition alleged that Terry\u2019s environment with her father was injurious to her welfare. The proposed amendment sought to modify that allegation so it would read that Terry\u2019s behavior, while in the custody of her father, was injurious to her welfare. When the attorneys representing John and Paula Wheat stated they had \u201cno objection\u201d to the proposed modification, the amendment was allowed.\nJohn Wheat admitted the allegations set forth in the amended petition. The State then offered the following facts as a basis for his admission:\n\u201cYour Honor, first of all, the State would offer as evidence that the father in this case, John M. Wheat and the mother in this case, Paula Wheat were divorced.\n* * *\nLegal custody was awarded to the father. Since that time, the daughter, the minor Respondent in this case, Terry Wheat has resided with the father.\n* * *\n[S]he has indicated to the State\u2019s Attorneys\u2019 Office and to other personnel that she does not wish to live with the father and will not live with the father.\nThat during the time that she has lived with the father, she has not been attending school; that she has left school and gone to various shopping centers and committed actions of delinquency and committed shoplifting; and that she will not listen to her father, refuses to listen to her father.\nAnd the father at this time feels that he can no longer control her behavior in anyway and that at this time * * * her behavior is becoming such that it is injurious to others and may very well become injurious to herself.\nTHE COURT: Do you stipulate to those facts?\nMR. PISTORIL: We stipulate to those facts. Mr. Wheat represents that he really has absolutely no control over the girl at this point and that is his basis for admission.\u201d\nAfter apprising Mr. Wheat of his rights, the trial court accepted John Wheat\u2019s admission to the allegations of the amended petition. Thereupon, the attorney representing Paula Wheat stated:\n\u201cI feel * * * the record should indicate that the State is not proceeding against the mother [Paula Wheat] in this case 000 [and] she is making no admission to the allegations in the petition.\nTHE COURT: All right. The record will so indicate.\u201d\nAt the conclusion of the adjudicatory hearing, the trial court found Terry Wheat to be a neglected minor and adjudicated her a ward of the court. The matter was then continued for a dispositional hearing and a social investigation was ordered into Terry\u2019s family situation.\nThe dispositional hearing was conducted March 5,1976. Terry Wheat was not represented by counsel at this hearing, although a guardian ad litem, who was an attorney, was present on her behalf. At the outset, Paula Wheat\u2019s attorney questioned, for the first time, the propriety of the trial court conducting a dispositional hearing with regard to Terry\u2019s custody. Paula Wheat\u2019s attorney explained his position:\n\u201c[Bjefore there can be a dispositional hearing there must be an adjudicatory hearing to have a finding of fact whether or not the mother has been neglectful of her child 9 9 9.\n<* # #\nWe believe that if the State cannot proceed to a finding of neglect, the mother has the automatic right to the custody and control of her child # (Emphasis added.)\nThe trial court disagreed, stating:\n\u201c[Terry Wheat] has been adjudged a ward of this Court. Now what is in her best interests [with regard to custody] will be determined 9 9 9 after I have heard all of the evidence 000 which the parties wish to submit 9 0\nFollowing the presentation of all the evidence at the dispositional hearing and after considering arguments of counsel, the trial court found: (1) that both John and Paula Wheat were unfit to accept Terry\u2019s custody; and (2) that it was in Terry\u2019s best interests to be awarded into the custody of the Illinois Department of Children and Family Services. The trial court admonished the Department that Terry was not to be placed with either parent without further order of court.\nThe trial court informed the parties that the dispositional order was final and appealable. The trial court also advised them that their right to appellate review was dependent upon the filing of a notice of appeal within 30 days.\nPaula Wheat filed her notice of appeal on March 12, 1976. Terry Wheat filed her notice of appeal on July 22,1976. The two appeals were later consolidated.\nThe State presented a motion on June 3, 1977, to dismiss Terry Wheat\u2019s appeal for lack of jurisdiction, contending that the minor-respondent failed to file a timely notice of appeal. The motion was denied on June 23, 1977.\nOpinion\nParents have the primary rights and duties with respect to the care, custody and control of their children. Generally, this relationship continues until the child reaches the legal age of majority. It reaches into every facet of the child\u2019s life, from medical care, to education, to religious training, to discipline.\nAlthough parents have an inherent right to custody of their own children, this right is not absolute. Through its role as parens patriae, the State, in appropriate circumstances, may properly step in and substitute itself as the guardian of minor children within its jurisdiction. One outgrowth of the State\u2019s position as parens patriae is the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 701 \u2014 1 etseq.), which is directed, in part, at natural parents who are neglectful of children within their custody (Ill. Rev. Stat. 1975, ch. 37, pars. 702-1, 702 \u2014 4).\nI\nInitially, Paula Wheat contends that she was deprived of the right to be heard (Ill. Rev. Stat. 1975, ch. 37, par. 701 \u2014 20) at the adjudicatory hearing. The contention is without merit. The record discloses that when Paula Wheat appeared at the adjudicatory hearing, the public defender immediately was appointed to represent her. Represented by counsel, Paula Wheat then participated fully in the adjudicatory hearing and exercised her opportunity to be heard.\nII\nPaula Wheat next contends that once the finding of neglect was entered against John Wheat, she became entitled automatically to Terry\u2019s custody as Terry\u2019s natural mother. Paula Wheat argues further that the State could deprive her of Terry\u2019s custody only by establishing, in an adjudicatory hearing, that she had herself neglected Terry. We disagree with both propositions.\nWhen a finding of neglect is entered against a parent, who had previously been awarded sole custody of the minor child pursuant to a divorce judgment, the noncustodial parent does not acquire an automatic and conclusive right to the child\u2019s custody. The trial court may adjudicate the minor a ward of the court and proceed to a dispositional hearing. Ill. Rev. Stat. 1975, ch. 37, par. 704 \u2014 8(2); see People v. Grieve (1971), 131 Ill. App. 2d 1078, 267 N.E.2d 19.\nThe State has the right, in its role as parens patriae, to present evidence at this dispositional hearing, in an attempt to demonstrate that the noncustodial parent is \u201cunfit or [is] unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor \u201d * (Ill. Rev. Stat. 1975, ch. 37, par. 705 \u2014 7(1)).\nFurthermore, the Juvenile Court Act specifically provides that a parent\u2019s right to custody \u201cshall not prevail when the court determines that it is contrary to the [child\u2019s] best interests * \u00b0 Ill. Rev. Stat. 1975, ch. 37, par. 701 \u2014 2(3)(c); see also Ill. Rev. Stat. 1975, ch. 37, par. 705 \u2014 1.\nThe circumstances presented by this case may be analogized to the situation where the parent, previously awarded sole custody of a minor child under a divorce judgment, dies. The surviving parent does not automatically acquire a conclusive right to the child\u2019s custody. Custody of the child may be awarded to a third party if the surviving parent is found unfit or if such an award is in the child\u2019s best interest. See People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417; Eaton v. Eaton (1977), 50 Ill. App. 3d 306, 365 N.E.2d 647; Ill. Rev. Stat. 1977, ch. 1M, pars. 11 \u2014 7, 11 \u2014 5(b).\nIll\nFinally, Paula Wheat contends the trial court erred when it allegedly treated the finding of neglect entered against John Wheat as binding upon her. However, a reading of the record establishes clearly that the trial court did not treat the neglect finding entered against John Wheat as binding upon Paula. The trial court proceeded to a dispositional hearing, not because the neglect finding bound Paula, but, rather, because the State had a right to contest: (1) Paula\u2019s fitness to accept Terry\u2019s custody; and also (2) whether an award of Terry\u2019s custody to Paula would be in the child\u2019s best interest.\nIV\nAs for the minor-respondent\u2019s appeal, we find that we lack jurisdiction to entertain it because it was not timely filed. A reviewing court must decline to proceed in a case over which it lacks jurisdiction. (In re Kerwood (1976), 44 Ill. App. 3d 1040, 359 N.E.2d 183; Norris v. Board of Fire & Police Commissioners (1975), 30 Ill. App. 3d 224, 332 N.E.2d 553.) The jurisdiction of the appellate court is generally dependent upon\nthe timely filing of a notice of appeal after the entry of a final judgment. Ill. Rev. Stat. 1975, ch. 110A, pars. 301 and 303(a); W. B. Cohan Corp. v. City Properties Corp. (1977), 49 Ill. App. 3d 300, 364 N.E.2d 303.\nSupreme Court Rule 660 provides that \u201c(b) * * \u00b0 [i]n all other proceedings under the Juvenile Court Act, including proceedings involving 00 * a neglected minor, 0 0 0 appeals from final judgments shall be governed by the rules applicable to civil cases.\u201d (Ill. Rev. Stat. 1975, ch. 110A, par. 660(b).) In a civil case, \u201cthe notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from * \u00b0 Ill. Rev. Stat. 1975, ch. 110A, par. 303(a).\nA neglect finding was entered against John Wheat at the February 6, 1976, adjudicatory hearing. On March 5,1976, following the dispositional hearing, a final appealable order was entered which awarded Terry into the custody of the Illinois Department of Children and Family Services. Terry Wheat\u2019s notice of appeal, however, was not filed until July 22,1976, well beyond the 30-day time period provided by Supreme Court Rule 303 (Ill. Rev. Stat. 1975, ch. 110A, par. 303(a)).\nThe failure of Terry Wheat to file a timely notice of appeal deprives this reviewing court of jurisdiction. We, therefore, vacate our prior order to the contrary, and dismiss the minor-respondent\u2019s appeal. See In re Kerwood (1976), 44 Ill. App. 3d 1040, 359 N.E.2d 183.\nAccordingly, for the reasons stated, we affirm the trial court.\nAffirmed.\nJOHNSON, P. J, and ROMITI, J., concur.\nStatements made during the adjudicatory hearing indicate that six paragraphs of factual allegations are set forth in the amended petition. However, we are unable to ascertain the substance of these allegations as the amended petition is not part of the record on appeal.\nIt should be noted that John Wheat was not requesting custody at the dispositional hearing.\nThe trial court stated: \u201c[The] evidence clearly establishes that the mother has been unable or unwilling to care, maintain, protect, discipline, promote or supervise the minor respondent or promote her well being.\u201d\nThe \u201cprimary role of \u00b0 \u00b0 e parents in the upbringing of their children is now established beyond debate as an enduring American tradition.\u201d Wisconsin v. Yoder (1972), 408 U.S. 205, 232, 32 L. Ed. 2d 15, 35, 92 S. Ct. 1526, 1541-42.\nFor a general discussion of these rights and responsibilities see 59 Am. Jur. 2d Parent and Ch\u00fcd \u00a7\u00a78 \u2014 24 (1971).\nSee generally People ex rel. Ryan v. Sempek (1958), 12 Ill. 2d 581,584,147 N.E.2d 295, 298, and 42 Am. Jur. 2d Infants \u00a714 (1969).\nTaken generally, this argument implicitly assumes that a parent-custodian under a judgment for divorce automatically forfeits any right to further custody if he or she is found to have neglected the child. This assumption is incorrect. Under the Juvenile Court Act, the trial court, in its discretion, may allow the neglected minor to remain in the custody of the parent-custodian. (Ill. Rev. Stat. 1975, ch. 37, par. 705 \u2014 2(c).) In such a situation the trial court would normally provide for protective supervision (Ill. Rev. Stat. 1975, ch. 37, par. 705 \u2014 4) and/or for an order of protection (Ill. Rev. Stat. 1975, ch. 37, par. 705 \u2014 5). We recognize, however, that in this case, the parent-custodian under the divorce judgment, John Wheat, did not seek Terry\u2019s custody at the dispositional hearing.", "type": "majority", "author": "Mr. JUSTICE LINN" } ], "attorneys": [ "James M. DeZelar, of Chicago, for appellants.", "Bernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger and Joan S. Cherry, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "In re TERRY WHEAT, a Minor.\u2014(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. TERRY WHEAT et al., Respondents-Appellants.)\nFirst District (4th Division)\nNos. 76-837, 76-1130 cons.\nOpinion filed January 4, 1979.\nJames M. DeZelar, of Chicago, for appellants.\nBernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger and Joan S. Cherry, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0471-01", "first_page_order": 493, "last_page_order": 500 }