Illinois Official Reports 

Appellate Court

In re D.S., 2018 IL App (3d) 170319

Appellate Court 

Caption

In re D.S., a Minor (The People of the State of Illinois, PetitionerAppellee, v. Daniel S., Respondent-Appellant).

District & No. Third District

Docket No. 3-17-0319

Rule 23 order filed

Motion to publish

allowed

Opinion filed

January 23, 2018

February 14, 2018

February 14, 2018

Decision Under 

Review

Appeal from the Circuit Court of Peoria County, No. 17-JA-49; the 

Hon. Katherine S. Gorman Hubler, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Christopher Frericks, of Peoria, for appellant.

Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino, Lawrence 

M. Bauer, and Thomas D. Arado, of State’s Attorneys Appellate 

Prosecutor’s Office, of counsel), for the People.

Louise M. Natonek, of Peoria, guardian ad litem.
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Panel JUSTICE SCHMIDT delivered the judgment of the court, with 

opinion.

Presiding Justice Carter and Justice McDade concurred in the 

judgment and opinion.

 OPINION 

¶ 1 After a dispositional hearing, respondent, Daniel S., appeals, arguing that it was against the 

manifest weight of the evidence for the court to take wardship of D.S. Respondent also alleges 

the court abused its discretion in naming the Department of Children and Family Services 

(DCFS) guardian. We affirm. 

¶ 2 FACTS 

¶ 3 Respondent is the father of D.S. On February 28, 2017, DCFS filed a petition alleging D.S. 

was a neglected minor in that her environment was injurious to her welfare. The petition stated 

that on December 14, 2016, D.S.’s mother, Chiquita J., had left D.S.’s siblings in the care of 

their 14-year-old sibling while she left the state. On December 15, 2016, DCFS contacted 

Chiquita, who stated that she would return on December 16, 2016. Chiquita did not return on 

that day and was uncooperative. A petition had previously been filed alleging that D.S.’s 

siblings were neglected, which did not name respondent and is not the subject of this appeal. 

The petition further included the criminal history of Chiquita and respondent. The petition 

listed respondent’s criminal history as: 

“ ’09 Battery; ’09 Domestic Battery; ’11 Illegal Possess/ Consume Liquor Public 

Way; ’14 Domestic Battery; ’14 Criminal Trespass to Land; ’15 Resisting Police; ’17 

Criminal Trespass to Land; ’17 Illegal Possess/ Consume Liquor Public Way; and is 

pending ’17 Theft (Felony) (2 Counts); and ’17 Financial Transaction and Fraud-Use 

Forged and Possession of Burglary or Theft Tools.”

The petition further proposed that an order of protection be entered, which would read: 

“Minor to reside with father, [respondent], and all contact between minor and mother 

shall be supervised by agency. Mother shall not enter the minor’s home. Father shall 

use no illegal substances or alcohol. Father shall submit to random drop testing or 

[B]reathalyzer at least two (2) times per month which DCFS shall set up and inform 

State’s Attorney’s Office of all missed and positive drops. All caretakers shall have 

prior DCFS approval.”

¶ 4 On March 6, 2017, the respondent was served in court and presented a voluntary 

acknowledgement of paternity. The court granted the order of protection contained in the 

petition. Respondent filed an answer to the petition on March 15, 2017, stating that he lacked 

sufficient knowledge regarding the allegations of the petition, but did not demand strict proof. 

¶ 5 An adjudicatory hearing was held on March 29, 2017. The State presented a detailed 

proffer regarding the allegations in the petition, including respondent’s criminal history, 

stating that the pending 2017 felony theft was now a conviction for misdemeanor theft. 

Respondent only disputed the 2017 charge for financial transaction and fraud-use forged and 

possession of burglary or theft tools that was pending in Minnesota, stating that he did not 
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believe that was him. The court found the petition proven by a preponderance of the evidence, 

except for the pending Minnesota charge against respondent. The court further found that 

respondent did not contribute to the injurious environment. 

¶ 6 On April 19, 2017, the court held a dispositional hearing. Respondent testified that, other 

than the 2017 conviction for illegal possession and consumption of liquor on a public way, he 

had not recently abused alcohol or illegal substances. 

¶ 7 The dispositional report stated that D.S. was born on February 22, 2017, and lived with 

respondent in an apartment along with respondent’s brother. Respondent was unemployed and 

cared for D.S. full time, took D.S. to all her appointments, and cooperated with the caseworker 

regarding the assessment and visitation. Respondent’s mother helped babysit if necessary. The 

report stated that Chiquita “reported that she and [respondent] have a good relationship. She 

plans to continue the relationship, but stressed they do not live together. She expressed concern 

regarding the current DCFS involvement and stated that they will not live together so, if 

necessary, he can retain custody of [D.S.] at birth.” However, respondent stated “that he and 

[Chiquita] are ‘ok’, but he does not talk to her except for a little bit at court and visits when he 

is dropping [D.S.] off.”

¶ 8 A police report showed that respondent and Chiquita were arrested together on January 25, 

2017, for credit card fraud and possession of stolen property. They told the police officers that 

they were dating and living together. 

¶ 9 The State recommended (1) D.S. be made a ward of the court, (2) DCFS be appointed 

guardian of D.S., and (3) Chiquita be found unfit. As to respondent, the State stated, “I’d ask 

that you find him fit, but I think that’s [a] very—close call. We have criminality here also. 

Certainly not to the same *** extent.” Respondent asked that D.S. not be made a ward of the 

court, and that he be found fit and made the guardian of D.S. The guardian ad litem asked that 

D.S. be made a ward of the court, DCFS be appointed guardian, and that both Chiquita and 

respondent be found unfit. 

¶ 10 The court made D.S. a ward of the court, appointed DCFS as guardian, found Chiquita 

unfit, found respondent fit, and allowed D.S. to remain with respondent. Further, the court 

ordered respondent to participate in the services outlined in the dispositional report, including 

that respondent submit to two drug and alcohol drops a month, all visitation with Chiquita be 

supervised, and Chiquita not enter the minor’s home.

¶ 11 ANALYSIS 

¶ 12 On appeal, respondent argues (1) it was against the manifest weight of the evidence for the 

court to take wardship of D.S. and (2) the court abused its discretion in appointing DCFS 

guardian of D.S. Based on the record, which shows, in part, that respondent and Chiquita had a 

lengthy history of criminal conduct, including joint arrests in 2017, we cannot say that it was 

against the manifest weight of the evidence for the court to take wardship of D.S. Moreover, 

because of respondent’s criminal history and poor choices when Chiquita was involved, the 

court did not abuse its discretion in appointing DCFS guardian. 

¶ 13 Under the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-21(2) (West 2016)), the court 

must hold a dispositional hearing after it determines that a child is neglected. 

“At this hearing, the court must first determine whether the minor is to be made a ward 

of the court. [Citation.] Only after a finding that the minor should be made a ward of the 
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court can the court issue a dispositional order affecting the future conduct of the 

parents. [Citation.] Likewise, the court’s consideration of the need for guardianship and 

whether a parent is dispositionally unfit must be preceded by the court’s finding that it 

is in the best interest of the minor to become a ward of the court. [Citation.]” In re C.L., 

384 Ill. App. 3d 689, 693 (2008) (citing 705 ILCS 405/2-22(1), 2-23(1), 2-27(1)(a) 

(West 2006)). 

The “paramount consideration” at a dispositional hearing is the best interest of the child. 

(Internal quotation marks omitted.) In re N.B., 191 Ill. 2d 338, 343 (2000). On review, we 

determine whether the court’s wardship determination was against the manifest weight of the 

evidence. See In re April C., 326 Ill. App. 3d 245, 257 (2001). “A finding is against the 

manifest weight of the evidence where a review of the record clearly demonstrates that the 

result opposite to that reached by the trial court was the proper result.” Id.

¶ 14 Here, the evidence at the dispositional hearing showed that at the beginning of January 

2017, respondent and Chiquita were dating, living together, and expecting D.S., their first child 

together. At the end of January, they were arrested together for credit card fraud and possession 

of stolen property. Before D.S. was born on February 22, 2017, respondent had already 

received convictions in 2017 for criminal trespass to land and illegal possession/consumption 

of liquor on a public way in addition to pending charges for theft. In addition, both he and 

Chiquita had a significant criminal history. When interviewed for the dispositional report, 

Chiquita stated that she and respondent were continuing their relationship. Further, Chiquita 

had left her other children alone while she left the state. Though respondent cooperated with 

the caseworker, kept D.S. in good health, and cared for her, we cannot say that it was against 

the manifest weight of the evidence for the court to take wardship of D.S. 

¶ 15 In coming to this conclusion, we note that respondent places significant weight on the fact 

that the court found him fit. However, we note that, though the court considers many of the 

same factors when considering wardship or fitness, the actual fitness finding is made after the 

wardship finding. See supra ¶ 13. In fact, a court may not make a fitness finding at a 

dispositional hearing regarding either parent unless the child is made a ward of the court. See 

C.L., 384 Ill. App. 3d at 697; In re M.M., 2016 IL 119932, ¶ 19 n.1. Though the court, when 

making the wardship determination, considers the specific parent’s capability to care for the 

child, as it does when considering the parent’s fitness, the wardship determination is based on 

the best interest to the child when considering the totality of the circumstances surrounding the 

child’s life. See 705 ILCS 405/2-22(1) (West 2016). This is seen here where the record shows 

that the court weighed the evidence regarding respondent’s capability of caring for D.S. with 

his and Chiquita’s criminal history and history together. Therefore, the court’s subsequent 

fitness finding is not dispositive on the question of whether wardship was properly taken. 

¶ 16 Similarly, respondent appears to use his dissatisfaction with the dispositional order 

requiring him to perform two alcohol/drug tests a month and prohibiting unsupervised visits 

between Chiquita and D.S. as a reason why wardship should not have been taken by the court. 

Specifically, respondent states, “Because the trial Court did not explain the need for the 

protective order or urinalysis testing and there is little, if any evidence, in the record to support 

either ‘intervention,’ the finding that wardship was in D.S.’s best interest was against the 

manifest weight of the evidence.” Again, the court’s decision to order the parties to participate 

in services or cooperate with certain requirements is created after the finding of wardship. 
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Supra ¶ 13. Therefore, the court’s subsequent decision to order the parties to engage in such 

has no bearing on the wardship finding. 

¶ 17 Once a minor is made a ward of the court at a dispositional hearing, the court must 

determine the proper disposition. 705 ILCS 405/2-22(1) (West 2016). The overriding concern 

is the best interest of the child. In re M.P., 408 Ill. App. 3d 1070, 1073 (2011). “On review, a 

trial court’s dispositional determination will be reversed only if the court abused its discretion 

by selecting an inappropriate dispositional order. [Citation.] A trial court abuses its discretion 

when no reasonable person would agree with its decision.” Id. “[O]ur courts have recognized 

that the trial court can generally split the guardianship and custody of a minor.” In re E.L., 353 

Ill. App. 3d 894, 898 (2004); see also M.P., 408 Ill. App. 3d at 1074. 

¶ 18 After reviewing the record, we conclude that the court did not abuse its discretion in 

granting DCFS guardianship of D.S., while respondent retained custody. As stated above, the 

court found respondent fit, cooperative with DCFS, and caring for D.S. and her medical needs. 

However, respondent had a significant criminal history, including three convictions at the 

beginning of 2017. Two of his convictions, including one in 2017, were for illegal possession 

and consumption of liquor. Moreover, respondent and Chiquita had engaged in criminal 

activity together, showing that perhaps respondent did not make the best decisions when 

Chiquita was involved. Significantly, during her interview for the dispositional report, 

Chiquita stated that she and respondent still maintained a relationship. We cannot say that no 

reasonable person would agree with the court’s decision to grant DCFS guardianship. 

¶ 19 CONCLUSION 

¶ 20 For the foregoing reasons, we affirm the judgment of the circuit court of Peoria County. 

¶ 21 Affirmed.