THIRD DIVISION		

							Filed: 06/25/03

1-02-1355

In re Tiona W., a Minor						)  Appeal from the

(THE PEOPLE OF THE STATE OF ILLINOIS ex rel.		)  Circuit Court of

Richard A. Devine, State's Attorney of Cook County, Illinois,	)  Cook County

									)

	Petitioner-Appellant,						)

									)

		v.							)  

									)

TIARA W. and NATHANIELL P., 	 				)  Honorable

									)  Sandra R. Otaka,

	Respondents-Appellees).					)  Judge Presiding.

	JUSTICE HOFFMAN delivered the opinion of the court:

	The State brings the instant appeal from a circuit court order dismissing without prejudice its

petition for adjudication of wardship of Tiona W., a minor.  For the reasons which follow, we dismiss

the appeal for lack of jurisdiction.

	On September 25, 2001, the State filed a petition for adjudication of wardship of Tiona W.,

naming Tiara W. and Nathaniell P. as respondents.  In its petition, the State alleged that Tiona W.

was born on January 22, 2001, with "special medical needs" and that her mother, Tiara W., had failed

to consistently visit her in the hospital or to complete necessary medical training.  The State further

alleged that, on or about September 21, 2001, Tiara W. refused to give her consent to hospital

personnel for "a necessary medical procedure" for her daughter.  The State also asserted that Tiona W.'s father, Nathaniell P., was incarcerated.  Based upon these facts, the State alleged that Tiona W.

was both a neglected minor pursuant to section 2-3(1)(a) and (b) of the Juvenile Court Act (Act) (705

ILCS 405/2-3(1)(a), (b) (West 2000)) and an abused minor as defined by section 2-3(2)(ii) of the Act

(705 ILCS 405/2-3(2)(ii) (West 2000)).

	On September 25, 2001, the trial court conducted a temporary custody hearing pursuant to

section 2-10 of the Act (705 ILCS 405/2-10 (West 2000)).  Neither respondent was present for the

hearing.  Following the hearing, the trial court awarded temporary custody of Tiona W. to D. Jean

Ortega Piron, Guardianship Administrator of the Department of Children and Family Services.  The

court also entered an order appointing the Cook County Public Guardian as attorney and guardian ad litem for Tiona W.

	On October 1, 2001, Nathaniell P. was served with a copy of the petition for adjudication of

wardship and a summons via registered mail while in jail in Minnesota.  On January 8, 2002,

Nathaniell P. appeared in court personally and through counsel.  Tiara W. appeared and was

personally served with the petition for adjudication of wardship.  Also on that date, the trial court,

at the request of Nathaniell P., ordered paternity testing.  The case was continued to February 28,

2002.  On that date, the trial court made a finding, based upon the results of the paternity test, that

Nathaniell P. is Tiona W.'s father.  The court also conducted a case management conference and

continued the matter to April 2, 2002, for an adjudicatory hearing.

	On April 2, 2002, Tiara W. appeared personally and through counsel and Nathaniell P.

appeared through counsel.  Nathaniell P.'s counsel explained to the trial court that his client was

incarcerated in Minnesota and requested a continuance.  The court allowed the parties an opportunity to attempt to arrange for Nathaniell P. to participate in the hearing via telephone.  When these

attempts failed, the trial court denied the request for a continuance and proceeded with the

adjudicatory hearing.  At the conclusion of the State's evidence, Tiara W.'s counsel moved for a

directed finding, and Nathaniell P.'s counsel joined in that motion.  The trial court took the motion

under advisement and continued the case to May 8, 2002.

	On May 3, 2002, Nathaniell P. filed a motion to dismiss the petition for adjudication of

wardship pursuant to section 2-14 of the Act (705 ILCS 405/2-14 (West 1994)).  At that time,

section 2-14(b) of the Act provided that "an adjudicatory hearing shall be held within 90 days of the

date of service of process upon the minor, parents, any guardian and any legal custodian ***."  705

ILCS 405/2-14(b) (West 1994).1  Section 2-14(c) of the Act further provided that "[i]f the adjudicatory hearing is not heard within the time limits required ***, upon motion by any party the

petition shall be dismissed without prejudice."  705 ILCS 405/2-14(c) (West 1994).  On May 8, 2002,

the trial court heard arguments on the motion to dismiss.  Nathaniell P. argued that the petition must

be dismissed because the adjudicatory hearing had not been completed within 90 days of January 8,

2002, the date on which Tiara W. had been served.

	Relying on In re S.G., 175 Ill. 2d 471, 677 N.E.2d 920 (1997), where our supreme court interpreted this version of section 2-14(b) as requiring that an adjudicatory hearing be completed and not merely commenced within 90 days of service of process, the trial court granted the motion and

dismissed the petition for adjudication of wardship of Tiona W. without prejudice.  The transcript of

the hearing on the motion to dismiss reflects that the State requested that the trial court stay its ruling

in this regard "for approximately one hour" to allow the State "to do the mechanical paperwork ***

to refile the case to bring it back into the system."  The trial court granted this request, and stayed

the dismissal of the petition for adjudication for one hour.  The case was subsequently recalled, at

which time the trial court inquired as to whether the State needed a stay any longer.  The State

responded that it did not, and the trial court then dismissed the petition for adjudication of wardship

without prejudice.  The following day, the State filed a notice of appeal from the dismissal order.

	On appeal, the State raises several arguments in urging us to reverse the trial court's order

dismissing the petition for adjudication of wardship of Tiona W.  First, the State asserts that we must

apply an amended version of section 2-14 of the Act, which provides that an adjudicatory hearing

need only be commenced, not completed, within 90 days of service of process being completed.  The

amendment upon which it relies is contained in Public Act 92-822, which became effective on August

21, 2002, after the trial court dismissed the petition in this case, but which states that it applies to all

actions pending on or after January 1, 1998.  Pub. Act 92-822, eff. August 21, 2002 (reenacting 705

ILCS 405/2-14)).  Alternatively, the State asserts that the trial court erred in dismissing the petition

for adjudication because: (1) Nathaniell P. should not have been considered served, and the 90-day

time period in which the hearing was to be held should not have started running, until his paternity

was established; (2) even if Nathaniell P. was considered to have been served before paternity was

established, the 90-day time period was tolled during the time in which the paternity testing was being conducted; (3) the parties waived the 90-day statutory time requirement; and (4) the trial court erred

in granting the dismissal where Nathaniell P. intentionally delayed the proceedings for the purpose

of obtaining a dismissal pursuant to section 2-14 of the Act.  As we will explain, however, we need

not reach the merits of the State's arguments.

	Initially, we note that the State has not included in its brief a statement of jurisdiction, as

required by Supreme Court Rule 341(e)(4)(ii) (188 Ill. 2d R. 341(e)(4)(ii)).  Respondent Tiara W.

has not filed a brief with this court, and respondent Nathaniell P. has filed a brief but has not

challenged this court's jurisdiction.  Nonetheless, this court has an independent duty to consider

whether it has jurisdiction over an appeal, and to dismiss the appeal if it finds that jurisdiction is

lacking.  Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539, 470 N.E.2d 290 (1984).   Subject to certain exceptions for appeals from interlocutory orders provided for by supreme court rules not

applicable in this case2, this court's jurisdiction is limited to review of final orders of a trial court.  Flores v. Dugan, 91 Ill. 2d 108, 112, 435 N.E.2d 480 (1982); see Official Reports Advance Sheet No. 21 (October 17, 2001), R. 660, amended effective October 1, 2001 (appeals from final judgments in

proceedings under Juvenile Court Act are governed by rules applicable to civil cases).  A final

judgment or order is "a determination by the court on the issues presented by the pleadings which

ascertains and fixes absolutely and finally the rights of the parties in the lawsuit."  Towns v. Yellow Cab Co., 73 Ill. 2d 113, 119, 382 N.E.2d 1217 (1978).  That is not to say that a judgment or order must be addressed to the merits of the of the action in order to be considered final.  Rather:

		" 'A final judgment means, not a final determination of the rights of the parties

with reference to the subject matter of the litigation, but merely of their rights with

reference to the particular suit.  It is not at all necessary that the judgment should be

upon the merits, if it definitely puts the case out of court.  It is the termination of the

particular action which marks the finality of the judgment.' " Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 455, 736 N.E.2d 179 (2000), quoting Mutual Reserve Fund Life Ass'n v. Smith, 169 Ill. 264, 265, 48 N.E. 208 (1897).

	Ordinarily, an order dismissing a complaint without prejudice is not deemed final for purposes

of appeal.  DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 76, 588 N.E.2d 1139 (1992);  J. Eck & Son, Inc, v. Reuben H. Donnelley Corp., 188 Ill. App. 3d 1090 (1989); International Insurance Co. v. Morton Thiokol, Inc., 185 Ill. App. 3d 686, 691, 542 N.E.2d 6 (1989).  As our supreme court stated in Flores v. Dugan, 91 Ill. 2d 108, 114, 435 N.E.2d 480 (1982), the language "without prejudice" in a dismissal order "clearly manifests the intent of the court that the order not be

considered final and appealable." Nonetheless, a reviewing court must look to the substance, rather

than the form, of the order in question in order to determine whether it is final for purposes of appeal. 

In re Marriage of Yndestad, 232 Ill. App. 3d 1, 4, 597 N.E.2d 215 (1992).

	In the instant case, the trial court dismissed the petition for adjudication of wardship of Tiona

W. pursuant to a version of section 2-14 of the Act which provided that "[i]f the adjudicatory hearing

is not heard within the time limits required ***, upon motion by any party the petition shall be dismissed without prejudice."  705 ILCS 405/2-14(c) (West 1994)).  In interpreting the language of

section 2-14 as requiring dismissal, without prejudice, of any petition with regard to which the

adjudicatory hearing is not completed within 90 days, our supreme court rejected the notion that its

interpretation would put children at risk.  It reasoned as follows:

	"Trial judges are aware of the statutory deadline and are charged with controlling

their docket accordingly.  The Juvenile Court Act further provides for the liberal

supplementing of petitions.  See 705 ILCS 405/2-13(5) (West 1994).  Moreover,

section 2-14 provides that the dismissal of a petition on timeliness grounds is without

prejudice.  705 ILCS 405/2-14(c)(West 1994).  Therefore, the State may immediately

file a new petition where children may be put at risk."  In re S.G., 175 Ill. 2d at 492.

In accordance with the statute, the trial court dismissed the instant petition without prejudice.

	In Flores, the court held that a dismissal for want of prosecution is not final and appealable, as the plaintiff has an absolute right to refile the action, within one year, against the same party or

parties and allege the same cause or causes of action.  Flores, 91 Ill. 2d at 113-14.  Similarly, as our supreme court observed in S.G., when a petition for adjudication of wardship is dismissed without prejudice on the basis that an adjudicatory hearing was not completed within the requisite time period,

the State has the right to immediately file a new petition.  The State may file the new petition against

the same parties and base it on the same charges as those stated in the original petition. In the instant

case, in fact, the trial court granted a brief stay of its dismissal order to allow the State to file a new

petition.  As such, we must conclude that the trial court's order dismissing the State's petition for

adjudication of wardship of Tiona W. without prejudice is not a final order for purposes of appeal.

	For the foregoing reasons, we dismiss the instant appeal.

	Appeal dismissed.

	SOUTH, 

P.J., and WOLFSON, J., concur.