People v. Erika M. (In re J.S.)
| Decision Date | 31 January 2020 |
| Docket Number | No. 1-19-1119,1-19-1119 |
| Citation | 442 Ill.Dec. 613,160 N.E.3d 475,2020 IL App (1st) 191119 |
| Parties | IN RE J.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Erika M., Respondent-Appellant). |
| Court | United States Appellate Court of Illinois |
Amy P. Campanelli, Public Defender, of Chicago (Suzanne A. Isaacson, Assistant Public Defender, of counsel), for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Gina DiVito, and Leslie Billings, Assistant State's Attorneys, of counsel), for the People.
Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain and Carrie C. Fung, of counsel), guardian ad litem.
¶ 1 In this appeal, Erika M. (respondent) challenges an order of the circuit court of Cook County finding her son J.S. to be a neglected minor due to an injurious environment. Respondent also argues that (i) the circuit court erred in denying her motion for substitution of judge as of right, and (ii) a section of the Juvenile Court Act of 1987 (Juvenile Court Act) ( 705 ILCS 405/1-1 et seq. (West 2018)) limiting substitution of judge as of right in certain instances ( 705 ILCS 405/1-5(7) (West 2018)) denies parents the equal protection of the laws under the United States and Illinois constitutions ( U.S. Const., amend. XIV ; Ill. Const., art. I, § 2 ).
¶ 2 For the reasons discussed herein, we affirm.
¶ 4 Respondent is the biological mother of seven children; the youngest, J.S., was born in April 2015. The older six children were the subjects of petitions for adjudication of wardship filed in 2007 or 2008, which were assigned to Judge Nicholas Geanopoulos: Ca. S. (07 JA 6); Jal. S. (07 JA 7); Jak. S. (07 JA 8); Ce. S. (07 JA 9); Jac. S. (07 JA 10); and A.S. (08 JA 76). J.S.'s putative father, Andre S. (Andre), is the father of respondent's other children except for Ca. S. Andre is not a party to this appeal.
¶ 5 In adjudication orders entered in December 2008, the circuit court found that Ca. S., Jal. S., Jak. S., Ce. S., and Jac. S. were neglected as defined in section 2-3 of the Juvenile Court Act ( 705 ILCS 405/2-3 (West 2008) ) based on injuries inflicted on Jak. S. Respondent was also found to be unable for some reason other than financial circumstances alone to care for, protect, train, or discipline the minors. Respondent's parental rights as to twins Jac. S. and Jak. S. were terminated in October 2011 based on her voluntary consent to their adoption. In September 2014, respondent's parental rights as to A.S. were involuntarily terminated based on, among other things, her desertion of A.S. for more than three months preceding the commencement of the termination proceedings; A.S. was subsequently adopted.
¶ 6 In March 2017, respondent filed a pro se "motion to vacate guardianship and [reinstate guardianship] with mother" (motion to vacate guardianship) with respect to her three older children who were not the subject of adoption proceedings. She filed the motion under the minors' 2007 case numbers. The circuit court subsequently appointed attorneys for respondent and the minors as well as a Court Appointed Special Advocate (CASA). In the following months, the CASA volunteer reported to the court, the Public Guardian's office subpoenaed school records, and the minors participated in therapy. The motion to vacate guardianship was continued to December 12, 2017.
¶ 7 While respondent's motion was pending, the Department of Children and Family Services (DCFS) received a report that two-year-old J.S. remained in her care. On November 28, 2017, the State filed a petition for adjudication of wardship and a motion for temporary custody with respect to J.S. (17 JA 1248). During a hearing on that date, Steven Shelley (Shelley), a DCFS investigator, testified that he had several interactions with respondent following his assignment to the matter in September 2017. In a meeting at her apartment on November 17, 2017, respondent had agreed to intact family services and a safety plan for J.S. As Shelley and respondent conversed, Andre entered the apartment using his keys. According to Shelley, Andre was upset when he learned of the arrangement because J.S. would be placed with a relative outside of the home. After Shelley went to his vehicle to run a background check on the relative, he was not allowed back into the apartment. Shelley returned on the same date with two police officers but did not gain access to the apartment. He left a voicemail for respondent, stating that DCFS needed to take protective custody of J.S. Shelley returned to the apartment building with law enforcement on November 20, 2017, but again did not gain entry.
¶ 8 Shelley requested that the court issue a child protection warrant based on his belief that J.S. was at risk of harm due to past domestic violence issues between respondent and Andre and between Andre and Jal. S. On November 28, 2017, the circuit court (a) issued a child protection warrant directing that J.S. be brought to DCFS and (b) entered a temporary custody hearing order which granted custody of J.S. to the DCFS guardianship administrator and scheduled a hearing on December 12, 2017, i.e. , the continued hearing date on respondent's motion to vacate guardianship as to Ca. S., Jal. S., and Ce. S.
¶ 9 Respondent did not attend the hearing on December 12, 2017, and her counsel withdrew the motion to vacate guardianship. J.S.'s case was continued on approximately six dates in January through April 2018; respondent did not appear at these hearings, and the child protection warrant was repeatedly extended. During this period, the circuit court entered orders directing certain police officers to appear and explain the efforts made to locate J.S.
¶ 10 After J.S. was located, respondent appeared in the circuit court for the first time in J.S.'s case on May 4, 2018, and the public defender's office – which had represented her in prior matters – was appointed as her counsel. Respondent's counsel then immediately moved for substitution of judge1 pursuant to section 2-1001(a)(2) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1001(a)(2) (West 2018)) which provides, in pertinent part, that a motion for substitution of judge as of right shall be granted if it is presented "before trial or hearing begins" and before the judge to whom it is presented has ruled on any substantial issue in the case. Id. In denying the motion, the circuit court stated that, pursuant to the Juvenile Court Act, "add-on siblings aren't subject to" a substitution of judge as of right. The circuit court's ruling was based on section 1-5(7) of the Juvenile Court Act, which provides that a party shall not be entitled to exercise the right to a substitution of judge without cause under the Code in a proceeding under the Juvenile Court Act if the judge is currently assigned to a proceeding involving the alleged abuse, neglect, or dependency of the minor's sibling or half sibling and that judge has made a substantive ruling in the proceeding involving the minor's sibling or half-sibling. 705 ILCS 405/1-5(7) (West 2018).
¶ 11 On May 4, 2018, the circuit court quashed and recalled the child protection warrant and entered an order granting respondent supervised visits with J.S. Respondent subsequently filed a motion to reconsider the denial of her motion for substitution of judge, arguing that the cases involving her other children had closed prior to the filing of the petition concerning J.S. and had remained closed as of the date of her substitution motion. Asserting that the circuit court had not entered an order reinstating wardship or reopening any of J.S.'s siblings' cases, respondent contended that (a) section 1-5(7) of the Juvenile Court Act did not apply and (b) her substitution motion satisfied the requirements of section 2-1001(a)(2) of the Code. Respondent also argued that, even if section 1-5(7) was applicable, such provision denied her the equal protection of the laws guaranteed by the United States and Illinois constitutions.
¶ 12 In its response, the State noted that respondent had filed her motion to vacate guardianship for Ca. S., Jal. S., and Ce. S. under their original 2007 docket numbers in March 2017. The State argued that the circuit court properly denied respondent's motion for substitution of judge because Judge Geanopoulos was currently assigned to a proceeding involving J.S.'s siblings. The State further contended that the policy reasons behind section 1-5(7) of the Juvenile Court Act and section 2-1001(a)(2) of the Code – e.g. , deterring "judge shopping" and strategic attempts to delay proceedings – supported the denial of respondent's motion. As to respondent's constitutional arguments, the State argued, in part, that (a) respondent was not similarly situated to parents subject to proceedings under other statutory schemes, e.g. , the Illinois Marriage and Dissolution of Marriage Act, the Parentage Act of 2015, the Probate Act of 1975, or the Adoption Act, and (b) the denial of a motion for substitution of judge as of right did not directly impair the exercise of a fundamental right.
¶ 13 The circuit court denied the motion to reconsider, finding that respondent had voluntarily reopened the proceedings with respect to three of her other children and such proceedings were pending at the time that J.S.'s petition for adjudication of wardship was filed. The circuit court also found that the issuance of the child protection warrant constituted a "substantive ruling." J.S.'s case thus continued before Judge Geanopoulos.
¶ 14 Two witnesses testified at the adjudication hearing: Kendra Cornett (Cornett), a therapist formerly employed by Healthy Families Chicago; and Shelley. Although her counsel represented that she was in court earlier in the day, respondent did not attend the hearing.
¶ 15 Cornett testified she provided individual therapy for Ca. S., Ce. S. and Jal. S. in the fall of 2017...
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