Docket Nos. 103620, 103639 cons.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

In re LEONA W., a Minor, Appellant (The People of the State of

Illinois, Appellant, v. Oscar H., Appellee).

Opinion filed April 3, 2008.

JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,

Garman, and Burke concurred in the judgment and opinion.

OPINION

This appeal arises from a judgment of the circuit court of Cook

County that found Oscar H. to be unfit and terminated his parental

rights to Leona W. (L.W.), his biological daughter. The appellate

court reversed and remanded with directions. In re L.W., 362 Ill. App.

3d 1106 (2005). We denied leave to appeal, but in the exercise of our

supervisory authority, we directed the appellate court to vacate its

judgment and reconsider the cause in light of our decision in In re

Arthur H., 212 Ill. 2d 441 (2004). In re L.W., 218 Ill. 2d 540 (2006)

(supervisory order). Following remand, the appellate court reached

the same conclusion it had initially and once again reversed and

remanded to the circuit court. 367 Ill. App. 3d 844. The State and the

office of the Cook County public guardian, representing the interests

of L.W., then petitioned our court for leave to appeal. 210 Ill. 2d R.

315. We allowed those petitions and consolidated them. For the

reasons that follow, we reverse the appellate court’s judgment and

remand the cause to that court for further proceedings.
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L.W., the biological daughter of Oscar H., was born in October of

1996 to Sandra W., a drug addict. At the time of her birth, L.W.

tested positive forintrauterine cocaine exposure and syphilis. She was

subsequently found to be suffering from mental deficits, a seizure

disorder and asthma.

Within weeks of her birth, L.W. was taken into protective custody

by the Department of Children and Family Services (DCFS).

Although this was originally intended to be a temporary measure,

L.W. has never lived with either of her biological parents. She is now

11 years old.

In early November 1996, less than three weeks after L.W.’s birth,

DCFS filed a petition under section 2–13 of the Juvenile Court Act

of 1987 (705 ILCS 405/2–13 (West 1996)) asking that the child be

made a ward of the court. That request was predicated on DCFS’s

allegation that L.W. was neglected within the meaning of section

2–3(1)(b) of the Juvenile Court Act (705 ILCS 405/2–3(1)(b) (West

1996)) because her environment was injurious to her welfare. More

specifically, the petition alleged that the whereabouts of L.W.’s

mother were currently unknown, that the mother had admitted to

cocaine use three weeks before L.W. was born, and that the mother

had failed to utilize support services which had been offered to her.

As an additional basis for requesting that L.W. be made a ward of

the court, the petition also alleged that the child was abused within

the meaning of section 2–3(2)(ii) of the Juvenile Court Act (705 ILCS

405/2–3(2)(ii) (West 1996)). The grounds for that allegationwere that

the mother or other person responsible for the child’s welfare

presented a substantial risk of physical injury to her because (1) the

mother had a documented history of inadequate supervision of the

child’s siblings and (2) one of those siblings had been sexually

molested and sustained a fractured arm due to physical abuse.

When DCFS initially filed its petition for adjudication of

wardship, the identity of L.W.’s father was unknown. Oscar H.

subsequently came forward and admitted paternity. In January of

1997, the circuit court entered an order memorializing Oscar H.’s

admission. By separate order the court appointed the public defender

to represent him. The petition for adjudication of wardship was then

amended to name Oscar H. as L.W.’s biological father.
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A hearing on the petition for adjudication of wardship was

convened February 25, 1997. In connection with that hearing, the

parties stipulated that Sandra W. and Oscar H. are L.W’s biological

parents; that L.W. was born on Oct. 21, 1996; that at the time of

L.W.’s birth, Oscar H. was “noncustodial”; and that if called as a

witness, Judith Kilpatrick, a social worker with Cook County

Hospital, would testify that Sandra W. had admitted using cocaine

three weeks prior to L.W.’s birth and wished to give up the child. The

parties further stipulated that Pam Rowlands, a caseworker with

Catholic Charities, would testify that at the time L.W. was born,

Sandra W. had eight other children, all of whom were in DCFS

custody, and that Sandra W. had not completed any drug

rehabilitation services.

The circuit court reviewed the parties’ stipulations, which were

read into the record at the February 25, 1997, hearing. At the

conclusion of that hearing, the circuit court entered an order which

found, based on the stipulated facts, that L.W. was abused within the

meaning of the Juvenile Court Act because she was at substantial risk

of physical injury as set forth in section 2–3(2)(ii) of the Act (705

ILCS 405/2–3(2)(ii) (West 1996)). The matter was then set for a

dispositional hearing.

By consent of all the parties and with approval of the court, the

normal 30-day deadline for the dispositional hearing was waived. See

705 ILCS 405/2–21(3) (West 1996). The dispositional hearing was

ultimately conducted on April 29, 1997. At the conclusion of that

hearing, the court entered a dispositional order in accordance with

section 2–23 of the Juvenile Court Act (705 ILCS 405/2–23 (West

1996)). That order made L.W. a ward of the court; found both parents

“unable for some reason other than financial circumstances alone to

care for, protect, train or discipline the minor”; held that reasonable

efforts had been made to prevent or eliminate the need to remove the

minor from the home, but that appropriate services aimed at family

preservation and family unification had been unsuccessful;

determined that it was in the best interests of L.W. to remove her

from her parents’ custody and care; and placed L.W. in the custody

of the DCFS Guardianship Administrator with the right to place the

minor. See 705 ILCS 405/2–27 (West 1996).
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As authorized by section 2–23(2) of the Juvenile Court Act (705

ILCS 405/2–23(2) (West 1996)), the court also entered an order of

protection pursuant to section 2–25 of the Act (705 ILCS 405/2–25

(West 1996)).The order prohibited any unsupervised contact between

L.W. and Sandra W., but allowed Oscar H. to have unsupervised day

visits with the child subject to various conditions. Finally, the court

scheduled a progress report and permanency hearing for June 9, 1997.

Numerous proceedings ensued. On May 13, 1997, Oscar H.

moved to vacate the prior placement orders and to have custody of

L.W. be given to him. This was styled “emergency motion to return

home” and was submitted on Oscar H.’s behalf by the public

defender. A hearing on that motion was held June 9, 1997, the same

date set for the permanency hearing and progress report. The result of

that hearing was entry of an agreed order which set as a permanency

goal L.W.’s “return home,” meaning her return to Oscar H.’s home.

Shortly thereafter, on June 19, 1997, a second agreed permanency

order was entered. The new permanency order set as a goal L.W.’s

return home to Oscar H. within 12 months. Both Sandra W. and

Oscar H. were present in court when this was done and both were

represented by counsel.

Section 2–28 of the Juvenile Court Act (705 ILCS 405/2–28(2)

(West 1996)) provides that permanency hearings are to be conducted

every 12 months following the initial permanency hearing, more

frequently if necessary, until the permanency plan and goal have been

achieved. In accordance with that requirement, four additional

permanency hearings were conducted by the circuit court between

1998 and 2001. Throughout these proceedings, the goal remained

returning L.W. to Oscar H.

Another permanency hearing was held in February of 2002.

Following that hearing, a hearing officer recommended a new goal:

substitute care pending a determination by the court as to whether the

biological parents’ parental rights should be terminated and a

guardian appointed with authority to consent to L.W.’s adoption.

Oscar H., through his attorney, objected to this recommendation,

arguing that the other children he had fathered with Sandra W. reside

with him, he had proven his ability to care for those children and for

L.W., and it would be in L.W.’s best interests for her to come live
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with him as well. In Oscar H.’s view, the appropriate permanency

goal should have been return of L.W. to him within 5 months.

The circuit court rejected Oscar H.’s arguments and entered a

permanency order setting as a goal the placement of L.W. with a

private guardian. The intended guardian was a nonrelative foster

parent with whom L.W. had been living since shortly after her birth.

The reasons stated in the order for selecting this goal and rejecting

previous goals were that L.W., who was then five, had lived with the

foster parent nearly her entire life; L.W.’s mother was not working

toward reunification; L.W.’s father, Oscar H., had not made

reasonable progress toward reunification; and the foster parent would

allow continued contact with L.W.’s biological family. The planned

date for achievement of the goal was the following October.

In the months which followed, the public guardian sought and

was granted approval to allow L.W. to move out of state with her

foster parent. At the end of the year, the court entered a new

permanency order setting as a goal substitute care pending a

determination as to whether the biological parents’ parental rights

should be terminated. The reasons given for this goal were that L.W.,

then six, had lived in “a non-relation, specialized home” since 1996;

she had special needs; and her parents had “participated in services

but *** not made substantial progress toward reunification.” The

deadline for achieving this goal was March of 2003.

When March 2003 arrived, the State filed a petition under section

2–29 of the Juvenile Court Act (705 ILCS 405/2–29 (West 1996))

seeking appointment of a guardian with authorization to consent to

L.W.’s adoption under the Adoption Act (750 ILCS 50/0.01 et seq.

(West 1996)). The petition alleged that in February of 1997, L.W. was

found by the court to have been abused, and that both of L.W.’s

parents were unfit because they had failed to maintain a reasonable

degree of interest, concern or responsibility for the child’s welfare

(see 750 ILCS 50/1(D)(b) (West 1996)) and had not made reasonable

efforts to correct the conditions that were the basis for the removal of

the child from them or made reasonable progress toward return of the

child to them (see 750 ILCS 50/1(D)(m) (West 1996)). The petition

further alleged that L.W.’s mother was also unfit for the additional

reasons that she had failed to protect L.W. from conditions in the

child’s environment injurious to her welfare (see 750 ILCS
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50/1(D)(g) (West 1996)) and that she was an habitual drunk or a drug

addict (see 750 ILCS 50/1(D)(k) (West 1996)). Finally, the petition

asserted that it would be in the child’s best interests if a guardian

were appointed with the right to consent to her adoption.

A hearing on the State’s petition was convened on August 15,

2003. At the outset of that hearing, the public guardian filed a motion

in limine to exclude evidence regarding Oscar H.’s custody and

parenting of the other children he had fathered with Sandra W.,

L.W.’s mother. Oscar H. opposed the motion, asserting that such

evidence was relevant to the issue of his parental fitness in this case.

The court then decided to continue the hearing for four days, until

August 19, 2003. In anticipation of the new hearing, the State advised

the court that it was dropping its claims that the mother was unfit

under subsections (g) and (k) of section 1(D) of the Adoption Act

(750 ILCS 50/1(D)(g), (D)(k) (West 1996)).

When the hearing resumed on August 19, the court granted the

public guardian’s in limine motion, holding that it would exclude

evidence regarding Oscar H.’s fitness as a parent with respect to his

other children. The court then proceeded to hear evidence on whether

Oscar H. and Sandra W. were unfit under subsections (b) or (m) of

section 1(D) of the Adoption Act (750 ILCS 50/1(D)(b), (D)(m)

(West 1996)), and, if unfit, whether it was in the best interests of

L.W. that a guardian be appointed with the power to consent to her

adoption.

To support its claim of unfitness, the State called as a witness

Mary Henderson, a case supervisor for Catholic Charities who had

been working on L.W.’s case since 1997. Henderson reviewed in

detail the history of the case, the details of L.W.’s condition,

education, and developmental progress; the parents’ circumstances;

their relationship with L.W.; the steps they had taken to correct the

conditions which were the basis for removal of the child from them;

and the progress they had made toward the return of the child to them.

Based on Henderson’s testimony and the documentary evidence in the

record, the court found that there was clear and convincing evidence

to support the allegation that Oscar H. and Sandra W. were unfit

under subsection (m) of section 1(D) of the Adoption Act (750 ILCS

50/1(D)(m) (West 1996)) because they had failed to make reasonable

efforts to correct the conditions that were the basis for the removal of
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L.W. from them and had not made reasonable progress toward her

return to them.

After making this finding, the court immediately proceeded to

consideration of the child’s best interests. On that question the court

heard testimony from the woman who had been serving as L.W.’s

foster mother. The foster mother described L.W.’s condition; the

conditions in the foster home; L.W.’s relationship with the foster

mother’s adopted son; L.W.’s involvement with the neighborhood,

school and community; and the foster mother’s desire to ultimately

adopt L.W.

The court also heard testimony from Gina Barrios, a social worker

from Catholic Charities currently assigned to L.W.’s case. Barrios

testified about her familiarity with L.W.’s case and detailed L.W.’s

current living conditions and relationship with her foster family.

Barrios reported that a neighbor boy was alleged to have touched

L.W. inappropriately, an incident reported to authorities by L.W.’s

foster mother. Barrios also spoke of L.W.’s medical and

developmental needs and howthey were being addressed by the foster

mother. Barrios thought the foster mother should be permitted to

adopt L.W.

Based upon the foregoing evidence and after hearing closing

arguments, the circuit court concluded that it was in L.W.’s best

interests to terminate the parental rights of both Oscar H. and Sandra

W. and to appoint a guardian with the right to consent to L.W.’s

adoption. The court entered its termination order on August 20, 2003.

In that order, the court granted both parents the right to appeal.

Termination of parental rights is immediately appealable under Rule

307(a)(6) (188 Ill. 2d R. 307(a)(6)), and Sandra W. and Oscar H. each

filed separate notices of appeal within the time and in the manner

required by that rule.

Sandra W.’s appeal was ultimately found to be without merit, and

the appellate court affirmed the circuit court’s judgment terminating

her parental rights. That decision has not been challenged. This

appeal concerns only the challenge to the circuit court’s judgment

asserted by Oscar H.

As grounds for his appeal, Oscar H. raised two issues in the

appellate court: (1) whether the trial court erred when it granted the
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motion in limine to exclude evidence regarding his custody of the

four other children he had fathered with Sandra W.; and (2) whether

the trial court’s finding of parental unfitness was against the manifest

weight of the evidence in light of the fact that Oscar H. was found fit

to care for the other four children, some of whom suffer from the

same or similar medical problems as L.W. The public guardian crossappealed, arguing that the circuit court had erred in rejecting his claim

that Sandra W. and Oscar H. were unfit for the additional reason that

they had failed to maintain a reasonable degree of interest, concern or

responsibility for the child’s welfare within the meaning of section

1(D)(b) of the Adoption Act (750 ILCS 50/1(D)(b) (West 1996)).

The appellate court reversed and remanded. It held that the circuit

court’s judgment terminating Oscar H.’s parental rights could not

stand because compliance with section 2–21 of the Juvenile Court

Act (705 ILCS 405/2–21 (West 1996)) was a precondition to a

termination hearing and, in its view, the circuit court’s February 25,

1997, determination that L.W. was abused did not meet the

requirements of that statute. L.W., 362 Ill. App. 3d at 1115-16.

Whether the circuit court’s decision comported with section 2–21

was not questioned by any of the parties to the case. It was raised by

the appellate court sua sponte. In the appellate court’s view, the

circuit court’s determination failed to comply with section 2–21 for

two reasons. First, while Sandra W.’s culpability for the

circumstances leading to the court’s finding of abuse were apparent,

the circuit court had failed to identify any facts which would support

a determination that Oscar H., himself, was in any way responsible

for those circumstances. Second, the appellate court thought the

written order entered by the circuit court was technically deficient

because it did not comport with section 2–21’s requirement that a

court’s determination of abuse “shall be stated in writing with the

factual basis supporting that determination” (705 ILCS 405/2–21(1)

(West 1996)). L.W., 362 Ill. App. 3d at 1115-16.

After reaching this conclusion, the appellate court went on to

address whether evidence of Oscar H.’s success in gaining custody of

four of L.W.’s siblings should have been admitted. After rejecting an

argument by the public guardian that considerations of waiver should

bar consideration of the issue, the appellate court opined “that

evidence that Oscar H. has been found fit and given custody of four
 

1The court’s opinion alluded to a constitutional challenge Oscar H. had

raised, but it provided no details regarding that challenge. It merely stated

that if the issue should arise in the trial court on remand, the trial court

should consider it in light of our opinion in In re D.W., 214 Ill. 2d 289

(2005). See L.W., 362 Ill. App. 3d at 1120.

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of L.W.’s siblings is material and relevant and is one factor that

should be considered by a court making a determination on the issue

of Oscar H.’s parental fitness and ability to parent and care for L.W.,

the child who is the subject of these proceedings.” L.W., 362 Ill. App.

3d at 1120. Accordingly, the appellate court held that should the State

elect to begin these proceedings anew in the circuit court, the circuit

court should not bar Oscar H. from presenting this evidence. The

court did not reach any of the other issues in the case.1

The State petitioned our court for leave to appeal. It contended

that the appellate court’s decision conflicted with this court’s opinion

in In re Arthur H., 212 Ill. 2d 441 (2004), because it was premised on

the erroneous view that salient inquiry at the adjudicatory hearing was

whether parents were at fault. According to the State, the critical

inquiry under Arthur H. is simply whether the child has been abused

or neglected, not who is responsible. The State next argued that the

appellate court’s decision conflicted with this court’s opinion in In re

Madison H., 215 Ill. 2d 364 (2005), and various appellate court

opinions because it failed to consider whether transcribed oral

findings or other sources in the record were sufficient to allow the

reviewing court to overlook the trial court’s failure to make the

written findings required by section 2–21(1) of the Juvenile Court Act

(705 ILCS 405/2–21(1) (West 1996)). The State also contended that

the appellate court’s decision misinterpreted section 2–21(2) of the

Juvenile Court Act (705 ILCS 405/2–21(2) (West 1996)) by

concluding that without the written findings required by section

2–21(1), a hearing on termination of parental rights cannot occur.

Finally, the State asserted that by addressing the propriety of the

motion in limine and considering what evidence would be admissible

at a possible future hearing, the appellate court exceeded the proper

boundaries of judicial review and issued an improper advisory

opinion.
 

2The transcript of the February 25, 1997, hearing was not included in the

original record on appeal. Until the appellate court sua sponte made the

finding of abuse or neglect an issue on appeal, the parties did not know and

could not have foreseen that the transcript would be relevant to a review of

the judgment terminating Oscar H.’s parental rights. After the appellate

court’s ruling made the transcript relevant, the record was supplemented to

include it.

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A petition for leave to appeal was also filed by the public

guardian. As had the State, the public guardian asserted that the

appellate court was wrong to overturn the judgment terminating

Oscar H.’s parental rights based on the failure of the circuit court’s

February 1997 determination to specify what acts of Oscar H. caused

the child to be abused. It agreed with the State’s contention that the

appellate court’s ruling conflicted with this court’s decision in In re

Arthur H., 212 Ill. 2d 441 (2004), but it also challenged the appellate

court’s decision on the additional grounds that the time for appealing

the initial determination of abuse or neglect had passed and the

appellate court lacked jurisdiction to revisit that determination. Even

if the court’s determination were subject to reexamination, the public

guardian contended, any deficiencies in the written findings entered

by the court were not necessarily fatal. The public guardian argued

that under this court’s decision in In re Madison H., 215 Ill. 2d 364

(2005), deficiencies in the court’s written order could be overcome by

transcribed oral findings or other sources in the record, and that when

the appellate court ruled as it did here, it did so without reviewing the

transcript of the February 1997 hearing on the petition for

adjudication of wardship.2 Because the appellate court did not have

the full basis for the circuit court’s adjudicatory ruling before it, the

public guardian asserted, that court did not know and could not have

known whether there was, in fact, a sufficient basis for the circuit

court’s ruling notwithstanding the absence of the written findings

required by statute.

The public guardian next took issue with the appellate court’s

judgment on the grounds that it appeared to have been predicated on

the mistaken belief that L.W. had actually been physically abused

prior to the February 1997 hearing, when she had not been. Finally,

the public guardian asserted that the appellate court’s resolution of the
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motion in limine question conflicted with its prior holding in In re

M.C., 201 Ill. App. 3d 792, 798 (1990), that a parent’s ability to care

for another child is not relevant to the question of whether he is fit to

care for the child presently before the court.

This court denied both the State’s petition for leave to appeal and

the petition for leave to appeal filed by the public guardian. At the

same time, however, we entered supervisory orders directing the

appellate to vacate its judgment and to reconsider the cause in light

of our opinion in In re Arthur H., 212 Ill. 2d 441 (2004). In

accordance with our supervisory orders, entered at the end of March

2006, the appellate court filed orders vacating its judgment and

indicating that it would reconsider the case. The State and the public

guardian were granted leave to file supplemental briefs, and a reply

brief was filed by Oscar H.

Several months later, in September of 2006, the appellate court

filed a new opinion in the case. The new version was largely

unchanged from the prior version. The opinion revised the court’s

discussion of the requirements of section 2–21 of the Juvenile Court

Act (705 ILCS 405/2–21 (West 1996)) to include a reference to our

opinion in In re Arthur H., 212 Ill. 2d 441 (2004), but the overall

analysis remained unchanged. The court concluded that the circuit

court’s determination of abuse or neglect was not supported by the

requisite written findings and did not provide Oscar H. with notice of

the reasons supporting the determination of abuse or neglect. Because

the finding of abuse or neglect was deficient, the court opined that the

matter should not have proceeded to a hearing on the petition for

termination of parental rights. The court therefore reversed and

remanded to the circuit court for further proceedings. 367 Ill. App. 3d

at 854-55. In so doing, the court held, as it had originally, that

evidence that Oscar H. had been found fit and given custody of

L.W.’s siblings was material and relevant and should not have been

excluded. Correspondingly, the court continued to adhere to the

position that the evidence could be considered by the circuit court in

assessing Oscar H.’s fitness to parent L.W. should the State elect to

proceed with termination proceedings following remand. 367 Ill.

App. 3d at 858-59.

There being no significant change in the appellate court’s

judgment, the public guardian once again petitioned our court for
 

3There is another rule pertaining to adjudications of wardship. Supreme

Court Rule 662(a) provides that “[a]n appeal may be taken to the Appellate

Court from an adjudication of wardship in the event that an order of

disposition has not been entered within 90 days of the adjudication of

wardship.” 134 Ill. 2d R. 662(a). In this case, however, there was no such

delay. The dispositional order was entered within 90 days of the

adjudication of wardship. The rulings were, in fact, entered simultaneously.

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leave to appeal based on the arguments it asserted in its original

petition for leave to appeal. The State did likewise. We granted both

petitions and consolidated them for briefing, argument and decision.

Before turning to the merits of these consolidated appeals, there

is one preliminary matter we must address. Oscar H. contends that

because our court denied the prior petitions for leave to appeal filed

by the State and the public guardian, principles of res judicata should

bar those entities from raising any of the same arguments now that the

matter is before us again. This argument is without merit. For res

judicata to apply, there must have been a final judgment on the merits

of the case. Denials of petitions for leave to appeal are not decisions

on the merits. People v. Ortiz, 196 Ill. 2d 236, 257 (2001). They

cannot be interpreted as reflecting approval or disapproval of a lower

court’s action. They signify only that four members of the court, for

reasons satisfactory to them, have not voted to grant leave to appeal.

See People v. Vance, 76 Ill. 2d 171, 183 (1979). The merits of the

arguments asserted by the State and public guardian are therefore

properly before us.

We turn then to the question of whether the appellate court erred

in setting aside the circuit court’s judgment terminating Oscar H.’s

parental rights to L.W. based on what it perceived as defects in the

circuit court’s order of February 25, 1997, finding L.W. to be abused.

The answer to this question is yes. The appellate court did so err. Had

Oscar H. wished to challenge the validity of the February 1997 order,

he had two opportunities to do so. First, he could have filed a petition

for leave to appeal from that order pursuant to Supreme Court Rule

306(a)(5) (155 Ill. 2d R. 306(a)(5)), governing appeals from

interlocutory orders affecting the care and custody of unemancipated

minors, if the appeal of such orders is not otherwise specifically

provided for elsewhere in these rules.3 Second, he could have
Rule 662(a) is therefore inapplicable.

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challenged the finding of abuse by taking an appeal from the April 29,

1997, order adjudging L.W. a ward of the court, finding both parents

“unable for some reason other than financial circumstances alone to

care for, protect, train or discipline the minor,” and determining that

it was in L.W.’s best interests to remove her from her parents’

custody and care and placing her in DCFS custody. Dispositional

orders of this kind are regarded as final and appealable as of right.

See In re Faith B., 216 Ill. 2d 1, 3 (2005). Appealing a dispositional

order is the proper vehicle for challenging a finding of abuse or

neglect. See In re Arthur H., 212 Ill. 2d 441 (2004) (where a

permissive interlocutory appeal has not been sought or allowed).

Appeals from final judgments entered in proceedings under the

Juvenile Court Act, other than delinquent minor proceedings, are

governed by the rules applicable to civil cases. 134 Ill. 2d R. 660(b).

The rule pertaining to appeals from final judgments is Supreme Court

Rule 301 (155 Ill. 2d R. 301). Where an appeal is appropriate under

Rule 301, notice of appeal must be filed within 30 after entry of the

final judgment from which the appeal is being taken or 30 days after

entry of the order disposing of any posttrial motions which may have

been filed. 155 Ill. 2d R. 303(a)(1). No such notice of appeal was

filed here. Any error pertaining to the dispositional order has

therefore been forfeited. See In re R.A.B., 146 Ill. App. 3d 993, 996

(1986). More than that, the appellate court had no jurisdiction to go

back and reconsider whether it was proper when made. See In re

Janira T., 368 Ill. App. 3d 883, 891 (2006).

In challenging this conclusion, Oscar H. contends that it would be

anomalous to bar parties from seeking review of dispositional orders

after time for appeal has passed given that we have held that

dispositional orders may normally be modified at any time up to final

closing and discharge of the proceedings if the court finds that it

would be in the best interests of the child to make the modification.

See In re Austin W., 214 Ill. 2d 31, 43-44 (2005); 705 ILCS 405/2–23

(West 1996). What Oscar H. fails to appreciate is that asking an

appellate court to review an order of the circuit court on appeal is

fundamentally different from asking the circuit court itself to alter its
 

4A change in circumstances is not a statutory precondition to a court’s

exercise of its authority to modify a dispositional order (In re Austin W.,

214 Ill. 2d at 45), but Oscar H. has not cited and we have not found any

authority which would permit any party to challenge a dispositional order

after the time for an appeal has passed on grounds which could have been

raised on direct review but were not. 

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own judgment, and the two avenues of recourse are subject to entirely

different sets of rules and standards. Modifications, for example, must

be carried out in a way not inconsistent with section 2–28 of the

Juvenile Court Act (705 ILCS 405/2–28 (West 1996). 705 ILCS

405/2–23(2) (West 1996). That statute does not control review by the

appellate court. We note, moreover, that, unlike appeals,

modifications do not normally challenge the validity of the original

order. Rather, they are typically directed to considerations that arise

after the original dispositional order was entered. In re Austin W., 214

Ill. 2d at 45.4

Even if there had been some basis for the appellate court to reach

back and address the validity of the circuit court’s prior order, its

decision to reverse the circuit court’s judgment terminating Oscar

H.’s parental rights could not stand. It is true that the written order of

February 25, 1997, finding L.W. to be abused did not include a

statement of the factual basis supporting that determination, as

required by section 2–21(1) of the Juvenile Court Act (705 ILCS

405/2–21(1) (West 1996)). As noted earlier in this opinion, however,

the trial judge’s ruling was predicated on stipulated facts that were

read into the record, and the court clearly specified the facts it was

taking into account in making its decision. The stipulations and the

statements were, in turn, transcribed and included in the report of

proceedings. There was nothing speculative about the trial judge’s

actions. What she did and why she did it were clearly spelled out. The

lack of detail in the actual written order therefore worked no

prejudice on any of the parties. It was a purely technical defect.

This situation is directly analogous to the one present in In re

Madison H., 215 Ill. 2d 364 (2005), which concerned a trial court’s

failure to comply with a comparable written-explanation requirement

set forth in section 2–27(1) of the Juvenile Court Act (705 ILCS
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405/2–27(1) (West 1996)). Noting that the purpose of the writing

requirement was to give the parties notice of the reasons forming the

court’s decision and to preserve the reasoning for appellate review,

we concluded that those purposes would be served just as well by

explicit oral findings stated during the hearing and then transcribed

and made part of the record. In re Madison H., 215 Ill. 2d at 374-75.

Accordingly, we concluded that where an oral pronouncement is

explicit and sufficient to advise the parties of the court’s reasoning,

the statutory requirement of a written explanation will be satisfied. In

re Madison H., 215 Ill. 2d at 377. We believe that rationale applies

with equal force here. See also In re Z.Z., 312 Ill. App. 3d 800, 803-

04 (2000). The appellate court therefore erred when it reversed the

circuit court’s termination judgment based on the circuit court’s prior

order of February 25, 1997. Rather than revisiting the prior order, the

appellate court should, instead, have decided Oscar H.’s challenge to

the termination judgment on the merits. Having failed to do so on two

prior occasions, it must do so now.

The final question raised by the petitions for leave to appeal filed

by the State and the public guardian, and the last issue we must

resolve, is whether the appellate court erred in holding that the circuit

court should not have granted the motion in limine regarding Oscar

H.’s custody of L.W.’s siblings. In considering this question, we

begin by noting that the matter has different significance under our

disposition than it did in the appellate court. Because the appellate

court reversed the termination judgment based on the defects it

perceived in the February 25, 1997, order, its discussion of the in

limine motion did not alter the outcome of the case. It merely

provided guidance to the circuit court in the event the State should

initiate new termination proceedings.

The situation is now different. Because we have concluded that

the termination judgment should not have been reversed based on the

February 25, 1997, order, the issue before us is not whether the

guidance given by the appellate court was correct. It is, instead,

whether the circuit court’s ruling on the in limine motion provides an

alternative basis for reversing that court’s judgment. We hold that it

does not.

Generally speaking, evidentiary motions, such as motions in

limine, are directed to the trial court’s discretion. A trial court’s ruling
 

5An offer of proof is, in fact, normally mandatory in order to preserve

for review the question of whether a motion in limine was properly granted.

That requirement may be relaxed where it is apparent that the trial court

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on such motions will not be disturbed on review absent an abuse of

that discretion. People v. Harvey, 211 Ill. 2d 368, 392 (2004). The

threshold for finding an abuse of discretion is high. A trial court will

not be found to have abused its discretion with respect to an

evidentiary ruling unless it can be said that no reasonable man would

take the view adopted by the court. See Clayton v. County of Cook,

346 Ill. App. 3d 367, 377 (2003). Moreover, even where an abuse of

discretion has occurred, it will not warrant reversal of the judgment

unless the record indicates the existence of substantial prejudice

affecting the outcome of the trial. Holston v. Sisters of the Third

Order of St. Francis, 165 Ill. 2d 150, 170-71 (1995).

Neither of these conditions was satisfied in this case. As we have

discussed, the State sought to find Oscar H. unfit on two grounds: that

he failed to maintain a reasonable degree of interest, concern or

responsibility for L.W.’s welfare (see 750 ILCS 50/1(D)(b) (West

1996)) and that he had not made reasonable efforts to correct the

conditions that were the basis for L.W.’s removal or made reasonable

progress toward her return to him (see 750 ILCS 50/1(D)(m) (West

1996)). Both of these grounds deal specifically with the steps Oscar

H. has taken with respect to L.W. How he has handled his parental

responsibilities with respect to L.W.’s siblings is not germane to that

question. We therefore cannot say that no reasonable person would

have taken the circuit court’s view in allowing the motion in limine

and excluding the evidence.

We note, moreover, that while the circuit court granted the motion

in limine, it nevertheless did hear testimony later in the proceedings

that custody of L.W.’s siblings had been returned to Oscar H. The fact

that Oscar H. was apparently fit to parent those children was therefore

before the circuit court notwithstanding the court’s ruling on the

motion in limine. Although Oscar H. may not have been allowed to

present the details of the care he provided to those other children, the

appropriate course when faced with such a ruling was to make an

offer of proof. Snelson v. Kamm, 204 Ill. 2d 1, 23-24 (2003).5 No such
clearly understood the nature and character of the evidence sought to be

introduced. Dillon v. Evanston Hospital, 199 Ill. 2d 483, 495 (2002).

Although the appellate court believed this to be such a case (see 367 Ill.

App. 3d at 857), its analysis appears to have been based on the assumption

that the excluded evidence consisted only of the fitness determinations and

awards of custody made in the siblings’ cases. Based upon our review of

the record, it appears that the evidence Oscar H. sought to admit and which

the in limine ruling excluded extended to other details about Oscar H.’s

parenting ability, including his success in meeting social service

requirements.

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offer was made. We therefore have no basis for ascertaining how, if

at all, that evidence may have altered the outcome of the case. As a

result, we cannot say that allowing the motion in limine resulted in

any material prejudice to Oscar H.

Before concluding our discussion, there is one final matter we

must address. The public guardian, as attorney for L.W., argues that

instead of remanding this cause to the appellate court for

consideration of the merits of Oscar H.’s challenge to circuit court’s

judgment terminating his parental rights, this court should address

that claim directly. We have declined a similar request by the public

guardian in In re Mark W., No. 104168 (April 3, 2008), a case

involving factual and procedural circumstances comparable to those

present in this case. After careful deliberation, we have decided to

decline direct review here as well. Nevertheless, mindful of the timesensitive nature of child custody proceedings, we accompany our

remand with the same directive we issued in In re Mark W. The

appellate court is to file its judgment in this matter within 60 days of

the issuance of this court’s mandate.

For the foregoing reasons, the judgment of the appellate court is

reversed, and the cause is remanded to that court for review, on the

merits, of the circuit court’s judgment terminating Oscar H.’s parental

rights. The appellate court is hereby directed to file its judgment in

this matter within 60 days of the issuance of this court’s mandate.

Reversed and remanded 

with directions.