In re R.W.

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 3rd District Appellate » 2007 » In re R.W.

In re R.W.

State: Illinois

Court: 3rd District Appellate

Docket No: 3-06-0282 Rel

Case Date: 03/27/2007

Preview:No. 3--06--0282 _________________________________________________________________ Filed March 27, 2007. IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2007 In re R.W. and S.W., ) Appeal from the Circuit Court ) of the 10th Judicial Circuit, Minors ) Peoria County, Illinois, ) (The People of the State of ) Illinois, ) ) Nos. 05--JA--129 and Petitioner-Appellee, ) 05--JA--130 ) v. ) ) Melvin W., ) Honorable ) David J. Dubicki, Respondent-Appellant). ) Judge, Presiding. _________________________________________________________________ JUSTICE McDADE delivered the opinion of the court: _________________________________________________________________ The respondent, Melvin W., is the father of the minor children R.W. and S.W. At the time the State filed its juvenile

petition alleging that the minors were neglected, the respondent was not living with the children and their mother. The trial

court adjudicated the minors to be neglected because of an injurious environment and placed them in the care of the Department of Children and Family Services (DCFS). During a

dispositional hearing, the respondent sought custody of the children. The court orally announced that it was reserving the

issue of respondent's fitness.

The court's written dispositional

order, however, stated that the respondent was "fit but reserved." The court denied the respondent's request for custody

of his children. On appeal, the respondent argues that the trial court erred by (1) denying him custody of the children when it had found him to be fit; and (2) finding that it was in the children's best interest to remain in DCFS custody. directions. BACKGROUND On June 9, 2005, the State filed two nearly identical juvenile petitions alleging that R.W. and S.W. were neglected because of an injurious environment. The petition stated that We affirm and remand with

the children's mother had left them alone and unsupervised on several occasions. Although the petition named the respondent as

the father, none of the allegations referred to his conduct. On September 28, 2005 the court adjudicated the children to be neglected, and entered an order of default against the respondent. On that date, the court also issued a dispositional

order in which it found the mother to be unfit, but made no ruling with regard to the respondent because it found his paternity at that time to be putative. In the September 28

dispositional order, the court made the children wards of the court and named DCFS as their guardian.

2

Later, the respondent voluntarily acknowledged paternity of the minors. The court then granted the respondent's motion to Consequently, the court held a second

vacate his default.

dispositional hearing regarding the respondent on March 21, 2006, and April 11, 2006. At the conclusion of the April 11

proceeding, the judge said with regard to the respondent, "I will reserve his fitness. Now, in terms of placement, I'm going to again keep DCFS as the guardian. Let me say I don't believe

this is an issue under 227 even though I found him fit but reserved." The court issued its written dispositional order that same day. In the order the court stated that the respondent was "fit but reserved." In the April 11 order, the court reiterated that the

children were wards of the court and that DCFS was their guardian. The respondent appealed. ANALYSIS The respondent contends that the trial court erred by denying him custody of the children when it had found him to be fit. Once a trial court adjudicates a child to be neglected, the court shall hold a dispositional hearing. (West 2004). 705 ILCS 405/2--21(2)

If the child is made a ward of the court at the

dispositional hearing, the court shall determine the proper

3

disposition.

705 ILCS 405/2--22(1) (West 2004).

If the child

was found neglected, the court shall not return the child to the custody of the parent until the court enters an order finding the parent to be fit to care for the child. (West 2004). 705 ILCS 405/2--23(1)(a)

If the court determines that the parent is unfit to

care for the child, the court may commit the child to the care of DCFS. 705 ILCS 405/2--27(1)(d) (West 2004). At the

dispositional phase, the trial court may reserve the issue of a respondent's fitness. N.E.2d 1191 (2004). When a trial court's oral pronouncement is in conflict with its written order, the oral pronouncement prevails. B., 359 Ill. App. 3d 647, 834 N.E.2d 605 (2005). In re Taylor See In re E.L., 353 Ill. App. 3d 894, 819

A trial court's In re

disposition that is not authorized by statute is void. D.W., 214 Ill. 2d 289, 827 N.E.2d 466 (2005).

In the present case, the preliminary issue is whether the trial court found the respondent to be fit, as the respondent asserts. The respondent contends that the court found him fit This

because its disposition was that he was "fit but reserved." is a question of law, which we review de novo. D., 368 Ill. App. 3d 854, 858 N.E.2d 961 (2006).

See In re Taylor

In this case, the trial court's initial oral pronouncement was that the issue of respondent's fitness was reserved. Later,

the court orally stated that it had found the respondent fit but

4

reserved.

In the written dispositional order, the court stated

that it found the respondent fit but reserved. First, we note that the statutes concerning the dispositional phase of juvenile proceedings do not authorize a finding of "fit but reserved." finding of fitness or unfitness. 2--27(1)(d) (West 2004). The statutes only speak of a See 705 ILCS 405/2--23(1)(a),

Thus, the court's oral pronouncement

and written order stating that the respondent was "fit but reserved" are void. See D.W., 214 Ill. 2d 289, 827 N.E.2d 466.

The court's oral pronouncement that it was reserving the issue of respondent's fitness was a valid determination by the court. See E.L., 353 Ill. App. 3d 894, 819 N.E.2d 1191. This

oral pronouncement took precedence over the court's written order that the respondent was "fit but reserved." Ill. App. 3d 647, 834 N.E.2d 605. See Taylor B., 359

Thus, the trial court reserved We hold, therefore, that

the matter of the respondent's fitness.

the respondent is incorrect as a matter of law that the trial court found him to be fit. Because the trial court reserved the matter of the respondent's fitness, we need not consider the respondent's argument concerning whether it was in the best interest of the children to continue in the custody of DCFS. The court may not

resolve the question of whether the respondent may have custody of the children until it determines whether the respondent is fit

5

or unfit.

See 705 ILCS 405/2--23(1)(a), 2--27(1)(d) (West 2004).

Consequently, we remand the matter for the trial court to determine whether the respondent is dispositionally fit or unfit, and for further proceedings consistent with this order. CONCLUSION For the foregoing reasons, we affirm the judgment of the Peoria County circuit court and remand the cause with directions. Affirmed and remanded with directions. HOLDRIDGE and CARTER, JJ., concur.

6

Download In re R.W..pdf