Arthur H. v. Arthur SR H.

Decision Date28 October 2004
Docket NumberNo. 96457.,96457.
Citation289 Ill.Dec. 238,819 N.E.2d 734,212 Ill.2d 441
Parties In re ARTHUR H., Jr., A Minor (The People of the State of Illinois, Appellant, v. Arthur H., Sr., Appellee).
CourtIllinois Supreme Court

Lisa Madigan, Attorney General, Springfield, Paul A. Logli, State's Attorney, Rockford (Gary Feinerman, Solicitor General, Linda D. Woloshin, Michael M. Glick, Assistant Attorneys General, Chicago, Norbert J. Goetten, Robert J. Biderman, Linda Susan McClain, Office of the State's Attorneys Appellate Prosecutor, Springfield, of counsel), for the People.

Michael W. Raridon, of Martenson, Blair & Raridon, P.C., Rockford, for appellee.

Charles P. Golbert, Janet L. Barnes, Office of the Cook County Public Guardian, Chicago, for amicus curiae Patrick T. Murphy, Cook County Public Guardian.

Chief Justice McMORROW delivered the opinion of the court:

The circuit court of Winnebago County adjudicated Arthur H., Jr. (Arthur Jr.), a neglected minor and made him a ward of the court. A majority of the appellate court reversed the finding of neglect and remanded this cause to the circuit court for a dispositional hearing. 338 Ill.App.3d 1027, 273 Ill.Dec. 716, 789 N.E.2d 890. For the reasons that follow, we affirm the holding of the appellate court reversing the finding of neglect with respect to Arthur Jr. We reverse the appellate court's judgment remanding this cause to the circuit court.

BACKGROUND

Lorraine H. (Lorraine) is the mother of five children: Niya N. (born July 18, 1994), Arthur H., Jr. (born November 30, 1996), Jaquane H. (born May 22, 1998), Lora H. (born July 20, 1999), and Earl H. (born May 21, 2000). The instant appeal involves only Arthur H., Jr., and is brought by his biological father, Arthur H., Sr. (respondent).

On March 23, 2001, the Department of Children and Family Services (DCFS) took emergency temporary custody of the four children who were found in Lorraine's home on that date. The State filed a three-count petition alleging that these children were neglected because they resided in an injurious environment which placed them at risk of harm, pursuant to section 2–3(1)(b) of the Juvenile Court Act of 1987 (Act) ( 705 ILCS 405/2–3(1)(b) (West 2000)). The petition asked the circuit court to declare the children wards of the court. Arthur Jr. was not present in Lorraine's home at the time that DCFS took temporary protective custody of her other four children, and he was not named in the petition to adjudicate wardship.

Count I of the petition alleged that the minors' environment was injurious to their welfare and that they were placed at a risk of harm because their "sibling had a hernia approximately 2 ½ to 3 inches in diameter and the mother had previously failed to follow the doctor's treatment and administer medication." Count II alleged that the children were in an injurious environment and faced a risk of harm because "the minors were dirty and wearing dirty clothing that smelled of urine, and the minor's [sic ] sibling was allowed to drink from a dirty bottle with curdled milk in it." Finally, count III of the petition alleged that the minors' "sibling displayed lethargy, an inability to move, imbalance, jittery eyes, and neck twitches," which created an injurious environment placing the children at risk of harm.

On that same day, the circuit court held a temporary shelter care hearing with respect to the State's petition. The circuit court found, based upon Lorraine's stipulation to the allegations in the petition, that there was probable cause to believe that each of the four children named in the petition was a neglected minor. Thereafter, a discussion commenced with respect to Lorraine's fifth child, Arthur Jr., and the following colloquy ensued:

"[Assistant State's Attorney Biagi]: [T]here is a further minor who is not presently in the State of Illinois and was not in the State of Illinois at the time that protective custody was taken. His name is Arthur H[ ]. * * * His father's name is Arthur H[ ], Sr. And what we would be looking for is an order against the mother that any contact with that minor be the same restrictions as with these minors, and we also would be seeking an order of cooperation with the mother for locating that minor * * *.
THE COURT: Clarify for me, does Arthur reside with someone in Milwaukee or was Arthur just in Milwaukee at the time that protective custody was taken of the other four in that he was to come back to Rockford and live with mom except under these circumstances?
MS. GLORIA [DCFS investigator]: I came to the home the first time and [Lorraine] said that the minor was in Milwaukee and she didn't know when he's gonna come back, he was residing—he is residing with his father and she doesn't have a way to get him back because she doesn't have transportation. * * * I found out * * * the child is residing with father and the father is asking for custody of this child in the court in Milwaukee, a thing that I did not know through Lorraine. She didn't inform me of that. That's all I know.
THE COURT: I guess I would ask all parties to cooperate in attempting to locate Arthur H[ ], Sr. and Jr., would direct the State to prepare a petition on Arthur so I have jurisdiction over Arthur, which I do not have at this time. I would ask you to get that on file by the close of business today."

In addition to sua sponte ordering the assistant State's Attorney to prepare and file a neglect petition with respect to Arthur Jr., the court further ordered that the parties cooperate in locating the child. The temporary shelter care hearing was then continued until March 29, 2001.

Pursuant to the order of the circuit court, later in the day on March 23, 2001, the State filed a three-count neglect petition captioned "In the Interest of Arthur H., Jr." This petition contained allegations of neglect identical to those contained in the petitions filed with respect to Lorraine's other four children. In addition, this petition also alleged that Arthur Jr. was 4 years of age, that his "place of residence is Winnebago County, Illinois," and that Arthur Jr. "is presently in the custody of the Department of Children & Family Services." The petition listed respondent, "Arthur H[ ]," as Arthur Jr.'s father, and stated that respondent resided in Milwaukee, Wisconsin.

On March 29, 2001, the court resumed the temporary shelter care hearing. Nancy Rice, an investigator for DCFS, informed the court that it was her belief that Arthur Jr. was living in Milwaukee with his father. However, Lorraine was unable to provide the address of respondent's residence in Milwaukee. Rice also stated that respondent was one of three fathers of Lorraine's children who lived in Milwaukee, and that Lorraine was also unable to provide the addresses of the other two fathers as well. The court then inquired of Lorraine as to the whereabouts of Arthur Jr. Lorraine told the court that Arthur Jr. was in Milwaukee with his father, but that she did not know their address. She explained that when she went to Milwaukee, she stayed at her mother's home, and she only saw respondent when he came to that location; Lorraine did not visit respondent's home. The circuit court judge found Lorraine in direct contempt of court for withholding information about Arthur Jr. and for failing to cooperate with DCFS in locating him. The court ordered that Lorraine was to remain in custody until Arthur Jr. was located.

On March 30, 2001, the parties reconvened in court for a status hearing. Christina Gloria, a DCFS investigator, stated that she had spoken to Lorraine's mother in Milwaukee, and the mother stated that she would "go and look for Arthur." The court was also informed that DCFS had found an address for respondent in Milwaukee. The court requested that it be informed when Arthur Jr. was located, and remarked that Lorraine was being held in custody "because we don't have [Arthur Jr.]. And I'm not going to release her until he is found and his safety is evaluated."

On April 3, 2001, Nancy Rice of DCFS informed the court that she had a telephone conversation with respondent. According to Rice, respondent stated that Arthur Jr. had been with him in Jackson, Mississippi, for the past three weeks, where respondent had been tending to his own ailing father. Rice also informed the court that respondent told her that Arthur Jr. had lived with him since the child was eight months old, and that the child only visited with Lorraine on occasion. The court set a pretrial conference for May 25, 2001, and ordered that respondent appear in court on that date with Arthur Jr. The record also indicates that respondent had not been served prior to this date. The court then released Lorraine from custody.

On April 24, 2001, DCFS prepared a service plan for Lorraine and the four children taken into temporary custody. The service plan detailed the progress of the four children and Lorraine since the time the children were removed from Lorraine's home, and contained recommendations for services for the family. The service plan contained virtually no mention of Arthur Jr., it did not list him as being a member of Lorraine's household, and it did not direct any tasks or services for him.

When court reconvened on May 25, 2001, DCFS investigator Teresa Munson stated that Arthur Jr. was with his father in Milwaukee, and that she "assumed that was okay." The court immediately issued a juvenile custody warrant for Arthur Jr., noting that "the instructions to the last caseworker were to make contact with Arthur Sr., Arthur Jr. in Milwaukee and make sure that Arthur Jr.'s placement was a safe and stable placement. That has not been done." The juvenile custody warrant alleged that "the conduct of and behavior of the minor may endanger the health, person, welfare or property of himself or others," that "the circumstances of his/her home environment may endanger his/her health, person, welfare or property," and that "there is reasonable cause to believe the minor has absconded from...

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