In re L.W.
State: Illinois
Court: 4th District Appellate
Docket No: 4-96-0667
Case Date: 08/19/1997
NO. 4-96-0667
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In the Interest of L.W., Alleged to be ) Appeal from
an Abused Minor, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) McLean County
Petitioner-Appellant, ) No. 96JA13
v. )
CHAD WHEELER and SHANNON GIBSON, ) Honorable
Respondents-Appellees. ) Elizabeth A. Robb,
) Judge Presiding.
_________________________________________________________________
JUSTICE GARMAN delivered the opinion of the court:
On March 1, 1996, the State filed a petition for
adjudication of wardship in the circuit court of McLean County,
alleging that L.W., a male minor born on October 22, 1995, had been
physically abused by his parents, respondents Chad Wheeler and
Shannon Gibson. It was alleged that respondents had inflicted, or
allowed to be inflicted, physical injury to the minor by other than
accidental means, in that on February 2, 1996, the minor was
diagnosed as suffering from two broken bones and "Shaken Baby Syn-
drome." It was also alleged that respondents had created a
substantial risk of physical injury to the minor by other than
accidental means that would be likely to cause death, impairment of
emotional health, or loss or impairment of bodily function. 705
ILCS 405/2-3(2)(i), (2)(ii) (West 1994). Pursuant to respondents'
stipulation, the trial court found probable cause to believe that
the minor was abused and ordered him placed in shelter care.
The adjudicatory hearing began on April 23, 1996.
Several witnesses testified. Respondents had told medical
personnel and a hospital social worker that a large dog had jumped
on L.W. and caused his injuries. The medical testimony indicated
the minor had suffered cardiac arrest at his home on February 1,
1996, and was taken to a hospital. He was subsequently transferred
to another hospital, where he was treated. He had multiple bruises
on his face and trunk, evidence of hemorrhage in the back of his
eyes, and he was severely anemic. He had a broken right arm,
broken left leg, and extensive hemorrhaging in his brain. The leg
fracture was a spiral fracture, which would have required tremen-
dous force to create. L.W. was also found to have rib fractures
and lung damage resulting from a contusion to his lungs. The
diagnosis was multiple trauma secondary to inflicted injuries.
Someone had shaken L.W. in a very violent manner. The broken bones
and bruises suggested a blunt force trauma. At that time, L.W.
remained in the hospital in a chronic vegetative state with minimal
brain activity. He was unable to breathe without a respirator. He
was not expected to live. It was the opinion of the testifying
physicians that the injuries L.W. suffered could not have been
caused by a dog jumping on him.
The adjudicatory hearing was continued to June 25, 1996.
When that hearing convened, counsel for respondent mother made an
oral motion to dismiss the State's petition for lack of jurisdic-
tion, representing to the court that L.W. died on May 28, 1996.
The court required that a written motion be filed and asked all
parties to brief the issue. On August 22, 1996, the court entered
a written order granting the motion to dismiss, finding that it had
lost jurisdiction to continue with the adjudicatory process once
L.W. died. The court based its reasoning on the fact that the
Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West
1994)) was enacted to provide shelter and care for minors when
their parents or other caregivers are unable or unwilling to do so.
The court expressed the opinion that when a respondent minor dies,
there is no further reason to continue with the case. The State
thereafter filed its notice of appeal. We now reverse and remand.
Neither respondent has filed a brief in this appeal.
However, since the record is simple and the issue the State raises
is clear, we will address the merits of the case. See First
Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d
128, 133, 345 N.E.2d 493, 495 (1976).
The State argues the language of section 2-3 of the Act
demonstrates that the trial court does not lose jurisdiction over
a case even if a minor who is the subject of the proceeding dies
prior to adjudication. That section provides in relevant part as
follows:
"Neglected or abused minor.
* * *
(2) Those who are abused include any
minor under 18 years of age whose parent or
immediate family member, or any person respon-
sible for the minor's welfare, or any person
who is in the same family or household as the
minor, or any individual residing in the same
home as the minor, or a paramour of the
minor's parent:
(i) inflicts, causes to be
inflicted, or allows to be inflicted
upon such minor physical injury, by
other than accidental means, which
causes death, disfigurement, impair-
ment of physical or emotional
health, or loss or impairment of any
bodily function[.]" (Emphasis add-
ed.) 705 ILCS 405/2-3(2)(i) (West
1994).
The State has not called to our attention, nor have we
found in our independent research, any case that deals with the
precise issue before us. The State argues that its interest in the
welfare of a child does not cease upon the child's death. In
support of its position, it cites People v. Eveans, 277 Ill. App.
3d 36, 660 N.E.2d 240 (1996), in which defendant was convicted of
the murders of two of her children. There, on appeal, one of the
defendant's arguments was that the trial court had erred in
admitting testimony of her former husband concerning statements she
had made to him during the marriage that she had killed the
children. This court noted the statutory marital privilege that
prevents a spouse from testifying against another spouse as to any
conversation between them during the marriage unless the interests
of their children or any children in their care are directly
involved. Defendant argued that, since her children were dead, no
interest of theirs was involved in the case. We rejected that
argument, stating that when a child is murdered by a parent, the
State stands in the shoes of the deceased child to serve several
continuing interests, such as (1) seeing the murderer brought to
justice, (2) protecting other children from violent acts by the
same defendant, and (3) deterring similar behavior in other
potentially abusive parents. We noted the State has a compelling
interest in child welfare and that the child-interest exception to
the marital privilege should be construed broadly in order to
afford the greatest protection possible to children, rather than to
the murderous or abusive spouse. Eveans, 277 Ill. App. 3d at 44-
45, 660 N.E.2d at 246-47.
In In re K.S., 264 Ill. App. 3d 963, 637 N.E.2d 1163
(1994), in which a minor died while in foster care, the public
guardian filed a motion to compel the Department of Children and
Family Services (DCFS) to file a report concerning the death. The
trial court granted the motion. DCFS filed a motion for nondisclo-
sure of a certain report the court had required that it disclose,
claiming privilege. The court denied the motion and DCFS appealed.
The appellate court addressed the issue as one of jurisdiction of
the juvenile court to enter any order concerning a ward of the
court after the ward died. The court noted that the circuit courts
have jurisdiction over all justiciable matters and that the
legislature has no authority to limit the jurisdiction of the
courts over matters that existed at common law. However, where the
legislature passes a law that creates a new justiciable matter,
which did not exist at common law, the statute itself defines the
limits of the court's jurisdiction. The appellate court concluded
that the juvenile court loses jurisdiction over matters concerning
a ward when the ward dies. It found nothing in the statute that
gave the court any authority to participate in the investigation of
a ward's death. K.S., 264 Ill. App. 3d at 966-67, 637 N.E.2d at
1165-66.
Other cases have also held a lack of jurisdiction where
actions taken by the circuit court were not specifically authorized
by the Act. See In re M.M., 156 Ill. 2d 53, 69, 619 N.E.2d 702,
711-12 (1993) (Act did not make provision for circuit court to
limit or restrict power of guardian appointed to consent to
adoption of minor); In re Ardedia L., 249 Ill. App. 3d 35, 40-41,
618 N.E.2d 804, 807-08 (1993) (Act did not authorize circuit court
to order DCFS to provide services to ward after her twenty-first
birthday); In re Chiara C., 279 Ill. App. 3d 761, 768, 665 N.E.2d
404, 409 (1996) (circuit court lacked jurisdiction to order DCFS to
place minor in a specific residential facility, since the Act did
not authorize the court to order specific services).
These cases, however, do not control the disposition of
the instant case. The wording of section 2-3 of the Act includes
a deceased child in the definition of abused minor, provided the
child's death was caused by physical injury inflicted by one of the
classes of persons described in that section. The circuit court is
thus authorized to determine whether that deceased child was an
abused minor. Accordingly, there is no jurisdictional bar to
continuing an abuse case after a child's death. At first blush, it
may seem an exercise in futility to continue with an adjudicatory
proceeding in the face of the minor's death. After all, the minor
cannot be declared a ward of the court, cannot be protected from
abusive family members, and cannot be reunited with his or her
family. Nonetheless, these are not the only purposes that may be
served by continuing with the adjudication. The Act seeks not only
to protect children who are the direct victims of neglect or abuse,
but also those who potentially may be subject to neglect or abuse
because they reside, or may in the future reside, with a person who
has been found to have neglected or abused another child. It is
well established:
"When faced with evidence of prior abuse by
parents, the juvenile court should not be
forced to refrain from taking action until
each particular child suffers an injury. ***
'[A parent] does not have the privilege of
inflicting brutal treatment upon each of his
children in succession before they may indi-
vidually obtain the protection of the
[S]tate.'" In re Brooks, 63 Ill. App. 3d 328,
339, 379 N.E.2d 872, 881 (1978), quoting In re
Miller, 40 Wash. 2d 319, 323, 242 P.2d 1016,
1018 (1952).
This is the concept of the "injurious environment"
recognized by the Act. 705 ILCS 405/2-3(1)(b) (West 1994). Under
this concept, evidence that a parent has neglected or abused one
child is relevant in determining whether another child may be at
risk for abuse or neglect. See In re A.D.W., 278 Ill. App. 3d 476,
482, 663 N.E.2d 58, 62 (1996); In re M.K., 271 Ill. App. 3d 820,
827, 649 N.E.2d 74, 79 (1995); In re Z.R., 274 Ill. App. 3d 422,
427, 654 N.E.2d 255, 259 (1995). This holds true even if the
neglect or abuse took place at some time in the past with other
children. See In re Harpman, 146 Ill. App. 3d 504, 514, 496 N.E.2d
1242, 1248 (1986); M.K., 271 Ill. App. 3d at 827, 649 N.E.2d at 79.
We therefore conclude that the plain language of the Act,
as well as the broad purposes to be served by juvenile proceedings
in general, authorizes the court to continue with the adjudicatory
process when the minor who is the subject of the proceeding dies.
The court does not lose jurisdiction in such cases. Any other
finding would lead to the peculiar situation in which respondents
could be found to have physically abused their child had he
survived the alleged abuse, but not if he died from its effects.
Such a result is unacceptable and contrary to the intent of the
legislature. However, there is nothing in the Act that requires
the court to continue with the adjudicatory process once a child
alleged to be abused dies. It is within the trial court's sound
discretion to determine whether further proceedings will serve the
goals sought to be achieved by the Act. In this regard, the trial
court is in the best position to balance the interests involved.
Accordingly, the circuit court's order granting respon-
dent mother's motion to dismiss is reversed and the cause remanded.
Reversed and remanded.
STEIGMANN, P.J., concurs.
COOK, J., dissents.
JUSTICE COOK, dissenting:
I respectfully dissent and would affirm the decision of
the trial court dismissing the petition.
When the State files a petition for adjudication of
wardship on the basis that a child has been abused, the death of
the child does not deprive the court of jurisdiction to proceed.
If other children are involved, the court may continue with the
case, and proof that the deceased child was abused, neglected, or
dependent may be the basis for a finding that the other children
are abused, neglected, or dependent. See In re K.G., 288 Ill. App.
3d 728, ___ N.E.2d ___ (1997). However, where the court will no
longer be called upon to order any relief under the Act, I disagree
that the case may continue solely for the entry of a declaratory
judgment that the parents are child abusers.
The majority opinion suggests (slip op. at 7) that the
case may continue for the protection of "those who potentially may
be subject to neglect or abuse because they reside, or may in the
future reside, with a person who has been found to have neglected
or abused another child." If one examines, however, each of the
potential adjudicatory or dispositional orders that a juvenile
court is empowered to enter, they all make reference to or
implicitly require the existence of a living child. See 705 ILCS
405/2-20, 2-21, 2-23 (West 1994).
Even in cases that may be filed under the declaratory
judgment provision of the Code of Civil Procedure (735 ILCS 5/2-701
(West 1994)), there must be a showing that the underlying facts and
issues of the case are not moot or premature so as to require the
court to pass judgment on mere abstract propositions of law, render
an advisory opinion, or give legal advice as to future events.
Underground Contractors Ass'n v. City of Chicago, 66 Ill. 2d 371,
375, 362 N.E.2d 298, 300 (1977). Among the reasons why courts do
not rule on moot questions are (1) the courts are already too busy
with real cases, and (2) the decision of a moot question is suspect
because the parties do not have the incentive to litigate it that
they have to litigate actual controversies. Respondents' lack of
incentive is shown by their failure to appear in this court. The
State argued in the trial court that this case was not moot because
of the public interest involved in the ongoing case. There is a
"public interest exception" to the mootness doctrine, but much more
is required for its application than that the public is interested
in the case. See Lucas v. Lakin, 175 Ill. 2d 166, 170, 676 N.E.2d
637, 639 (1997).
The State offers no reason why this case should not be
dismissed except to say that "the State may stand in the place of
the deceased child to vindicate his interest in seeing that his
abuser is brought to justice." In particular, there is no sugges-
tion that other children are involved, either in this petition or
similar petitions. Continuing with this proceeding as a substitute
for a criminal proceeding, or in order to obtain discovery in
connection with a criminal proceeding, would be improper.
I agree with the trial court there is no jurisdiction for
the entry of a purely declaratory judgment in a juvenile case. I
do not read the trial court's decision to say that an abuse case
must terminate on the death of the child even when there is some
purpose for further proceedings. We should accept the trial
court's determination that there is no further purpose for
proceeding with this case. Even if we assume the trial court did
not make that determination, we may affirm for any reason supported
by the record, even one rejected by the trial court. Busch v.
Graphic Color Corp., 169 Ill. 2d 325, 347-48, 662 N.E.2d 397, 409
(1996). The record shows no reason why this litigation should
continue, and in the absence of such a showing the case should be
dismissed.
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