In re K.L.S-P.

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In re K.L.S-P.

State: Illinois

Court: Illinois Southern District Court

Docket No: 3070098

Case Date: 04/03/2008

Preview:No. 3--07--0098

Filed April 3, 2008
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2008

In re K.L.S-P., ) Appeal from the Circuit Court

) of the 10th Judicial Circuit,

a Minor ) Peoria County, Illinois,

)
(The People of the State of )
Illinois, )

)

Petitioner-Appellee, ) No. 06--JA--112

)

v. )
)
I.S-P., ) Honorable

                                ) David J. Dubicki,
Respondent-Appellant). ) Judge, Presiding.

JUSTICE CARTER delivered the opinion of the court:

K.L.S-P. is the minor child of the respondent father,
I.S-P. The trial court adjudged the minor to be neglected. At
the conclusion of the dispositional hearing, the court made the
child a ward of the court, and orally found the respondent to be
dispositionally "fit but reserved." Additionally, the court
stated that "fit but reserved is fit." In the court's written
dispositional order, the court checked the box next to the
statement that the respondent was "fit but reserved." The record
does not indicate, and the court did not find, that the
respondent was either unable or unwilling to care for the child.

The court gave the Department of Children and Family Services
(DCFS) custody and guardianship of the child. On appeal, the
respondent argues that the court erred by granting DCFS custody
and guardianship of the minor. We reverse.

Once a trial court adjudicates a child to be neglected, the
court shall hold a dispositional hearing. 705 ILCS 405/2--21(2)
(West 2006). In order to make a child a ward of the court, the
court must determine that the parent is dispositionally unfit to
care for the child. 705 ILCS 405/2--27(1) (West 2006); In re
April C., 326 Ill. App. 3d 225, 760 N.E.2d 85 (2001).

If the child is made a ward of the court at the
dispositional hearing, the court shall determine the proper
disposition. 705 ILCS 405/2--22(1) (West 2006). 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. 705 ILCS 405/2--23(1)(a)
(West 2006). If the court determines that the parent is unfit,
unable, or unwilling to care for the child, the court may commit
the child to the care of DCFS. 705 ILCS 405/2--27(1)(d) (West
2006). We will reverse a trial court's dispositional
determination only if the findings of fact are against the
manifest weight of the evidence, or if the trial court committed
an abuse of discretion by selecting an inappropriate
dispositional order.  April C., 326 Ill. App. 3d 225, 760 N.E.2d

85.

When a trial court's oral pronouncement is in conflict with
its written order, the oral pronouncement prevails.  In re Taylor
B., 359 Ill. App. 3d 647, 834 N.E.2d 605 (2005). A trial court's
disposition that is not authorized by statute is void.  In re
D.W., 214 Ill. 2d 289, 827 N.E.2d 466 (2005).

In In re R.W., 371 Ill. App. 3d 1171, 864 N.E.2d 1007
(2007), the trial court made both oral and written findings that
the respondent was dispositionally fit but reserved. The trial
court also orally stated that it was reserving the respondent's
fitness. In R.W., this court noted that the relevant juvenile
statutes do not authorize a dispositional finding of fit but
reserved, but only a finding that a respondent is either fit or
unfit. Consequently, we found the trial court's statements to be
void that the respondent was fit but reserved. However, we also
said that the court's oral pronouncement that it was reserving
the respondent's fitness was valid, which prevailed over its
written and oral statements that the respondent was fit but
reserved. Therefore, we remanded the matter for the trial court
to determine whether the respondent was dispositionally fit or
unfit. R.W., 371 Ill. App. 3d 1171, 864 N.E.2d 1007.

Similarly, in this case, the trial court made both written
and oral findings that the respondent was "fit but reserved."
Unlike the facts in R.W., however, the court in the present case

orally pronounced the respondent to be fit by stating that "fit
but reserved is fit." As in R.W., the court's findings that the
respondent was "fit but reserved" were void because they were not
authorized by statute. Applying the rationale of R.W. to this
case, the court's oral pronouncement that the respondent was
"fit" was a valid finding that prevailed over the court's written
and oral findings that the respondent was "fit but reserved."
See R.W., 371 Ill. App. 3d 1171, 864 N.E.2d 1007. Put simply,
the trial court in this case found the respondent to be
dispositionally fit.

We reiterate that the record does not indicate, and the
court did not find, that the respondent was either unable or
unwilling to care for the child. Having found the respondent to
be fit, the trial court was not authorized to make the child a
ward of the court, and to grant custody and guardianship of the
minor to DCFS. See 705 ILCS 405/2--23(1)(a), 2--27(1) (West
2006); April C., 326 Ill. App. 3d 225, 760 N.E.2d 85. We hold
that the trial court abused its discretion by committing the
minor to the care of DCFS after having found the respondent to be
dispositionally fit, and without having found the respondent to
be either unable or unwilling to care for the child. Therefore,
we reverse that portion of the Peoria County circuit court's
dispositional order that granted DCFS custody and guardianship of
K.L.S-P.

Reversed.
HOLDRIDGE and SCHMIDT, J. J. concurring.

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