No. 2--06--0902 Filed: 7-5-07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ In re NIKI K., a Minor ) Appeal from the Circuit Court ) of Du Pa ge Co un ty. ) ) No. 06--JA--13 ) (The Peo ple of the State of I llinois, ) Honorab le Petitioner-Appellant, v. P.K. and S.K., ) James J. Kone tski, Respondents-Appellees). ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE McLA REN delive

red the o pinion of t

he court : Petitioner, the People of the State of Illinois (State), appea ls from the tri al court 's order dismissing the State's neglect and depende ncy petitions and returning custody of

the minor

child to responde nts, P.K. a

nd S.K. We affirm. OnMarch 12, 2006, P.K. and S.K. were a rrested inCook County. Their daug hter, Niki, was with them at the

time of ar

rest. Res pondents told the police that the child could be placed with her maternal grand

mother, D oris, who did

take custody of he

r. Doris stated that she could not take care of the chi ld "for

a long p eriod of

time." O fficers told her

that it wou

ld just be o vernig

ht becau se responde nts would be out of jail the next day. On March 20, Doris took Niki to stay with a cousin. OnMarch 23, both Doris

and the c ousin took Niki to the Addison police department and surrendered her, claiming that

neither they nor

any other f

amily members could take care of the minor. An aunt was approached about taking custody , but she refused.No. 2--06--0902

-2-

A shelter care hearing was held in the afternoon of March 23. Neither par ent was pre sent, as they both rema

ined in custody, and " numerous attempts" to reach themin the Cook

County jail
were unsuccessful. The minor was placed in shelter car e, wi th temporary c

ustody gra

nted to the Department

of Childre

n and Fa mily Service s (DCFS) Guardianship Administrator. The State filed
a petition se eking f

indings o f negle ct and de pendenc y, e arly terminat ion of re asonable

efforts to reunify the famil y, a nd termina

tion of pa rental r ights. OnApril3, a renewal hearing wa s held, at which time the prior temporary custody order was renewed and the cause was continued for answer and setting. The case wa s continued several more times for answ er and s etting until July 25. On that date, respondents enter ed their answers and moved for rehearing on temporary

custody, pursuant to section 2-- 10(4) of the Juvenile Court Act of 198 7 (Act ) (705 IL CS 405/2--10(4) (West 2004)), alleging that they had not received notice of and were not present at the March 23 shelter c are hearing. The cour t granted the motion and set the rehearing for the following day . Responde nt s then moved for a substitution of judge, which was granted. The rehearing was held on July 26, and the cour t found "no probable cause and no immediate and urgent necessity " and dismissed the case. The State then filed a motion to reconsider. In de nying that motion, the trial court noted that the original temporary

custody order, e

ntered March

23, was not renewed in a timely manner, and there was no valid order at the time of the rehea ring in July. In a

ddition, th e court r

eiterat ed its conclusiont hat there was no proba ble caus e. The c ourt deni ed the mot ion to rec onsider, and this appeal followed. The State first contends that the trial court erred in determining that the initial shelter c are order was not renewed on

a timely basis. A shelter c are order from an ex parte hearing "shall expireNo. 2--06--0902

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a fter 10 days from the time it is issued unless before its expiration it is renewed" at a hearin g a t which the party r

espondent appears or themoving party provides an affi davit as to

diligen t effort s to notify the party

respondent. 705 IL CS 405/2--10(3) (W est 2004). Th e shelter care order was entered on March 23, 2006, and the cause wascontinued to Monday, April 3, 11 day s later. On that date, a renewal order was e ntered. Incomputing the time within which " any act prov ided by law is to be

done," the last da

y is to be excluded if it falls ona Saturday or a Sunday. (Emphasis adde d.) 5 IL CS 70/1.11 (West 2004). In this case, the tenth

day , April 2, f

ell on a Sun

day ; thus, exclu

ding Apr il 2, the he aring was to be held by Monday

, April 3. As the hearing was held on that da

te, the sh elter ca

re orde r was pro perly and timely renewe d on April

3. The tri al court

erred i ndetermining that there was no valid shelter
ca re or de r i n e xi st en ce in Ju ly. The State next c ontends that t h e trial court erred in considering e vidence up to the time of the rehearing. Our

review of the testimony, however, discloses no evidence regarding anything tha

t occurred after the heari

ng held on March 23. The only

"evidence" that

was different from that of the original hearing was the presence of the parents, who were no longer in the Cook

County jail. The State does not sp ecify

what evid

ence it a lleges to have be en improp erly

consider ed. Thus, we must conclude that the Sta

te objec ts to the trial

court' s conside

ration of the fac t that the p arentswere no lo ng er in th e c us to dy o f C oo k C ou nt y. Section 2- -10(4) o f the Act provides in relev ant part : "If the parent *** of the minor did not have actual notice of or was not present at the shelter care heari ng, he or s he may file a n affidavit setting forth these facts, and the c lerk shallset the matter for rehearing not late r than 48 hours, excluding Sundays a nd legalNo. 2--06--0902

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holiday s, after the filing

of the affidavit. At the re

hearing , the cour

t shall pro ceed in t

he same manner as upon the original hearing ." 705 IL CS 405/2--10(4) (West 2004). The State ar

gues th at the clause "t he court shall proceed in the same manner as upon the original hearin g" requires the court to consider only evidence that could have been considere d at the original shelter care hearing. We review de novo issues of statut ory constru ction. In re C. W. , 199 Ill. 2d 198, 211 (2002). A court's primar

y objective in construing a statute is to give effe ct to the intent of the legislature. C.W. , 199 Ill. 2d at 2 11. Th e langu age of the statute is the most reliable indicator of the legisl ature's intent; wh ere the statutory language is clear

and unamb iguous, we need not resor t to other aids of construction. C.W. , 199 I ll. 2d at 211. In such a situation, we "must give effect to the statute as written, without reading into it exceptions, limitations, or conditions that the legislature did not ex press." C.W. , 199 Ill. 2d at 211-12. Here, the Act provides that parents who did not rece ive notice of a shelter care hearing are entitled to a rehearing. Such parents ar e to be given notice of their r ight s to a rehearing; the form of the notice, which sha

ll be giv en "subs tantially" as it is explicitly set forth in section 2--10(3) of the Act, includes a statement that the parents' rig hts "are the same as at the ini tial shelter care hearing." 705 I LCS 405 /2--10( 3) (West 20 04)). Amo ng the r ights of parents at a shelter care hearing is the right to present evidence concer ning: (1) whether a c hild is abused, neglected, or depende nt; (2) whether the

re is i mm ediate and urgent necessity to remove a child from the home, including evidence of

the parents' ability

to care for the child, conditions in the home, and alternative
means of protecting the child other than removal; and (3) the best interests of the child. See 705 IL CS 405/2--1 0(3) (We st 2004)). At

the rehearing, the court is to "proc eed in the same manner asNo. 2--06--0902

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uponthe original hearing." 705 I LCS 405/2--10(4) (West 2004). However, now here in the Act in general or section 2--10 in particular did the legislature limit theevidence that a court may consider at such a rehearing to the evidenc e that existed at the time of the original shelter care hearing. The Stat e's argume

nt, if ac cepted, would re ad into the Act limita

tions that t

he legi slature d

id notexpress, and this we will not do. The State's theory

is further undercut by

the very na

ture of the evidence that parents have a right to present at a rehearing. Pare nts may present evide

nce regarding " immedi ate and u rgent
ne ce ss it y" to remove a child from the home, including evidence of the parents' ability

to care for

the child, and the best inter

est s of the child. See 705 IL CS 405/2--10(3) (West 2004). There is no immediacy

or urgency in evidence regarding

the parents' ability

to care for a child four months before the hearin g is hel d, nor is evi dence o f the b est in teres ts of t he chi ld fou r mont hs ago of any re a l relevance at a

hearing today . Further, the legislature' s stated purpose and policy in e

nacting the Act in cl ud es th e p ol ic y:

"In all proc eeding s under th is Act the

court ma

y di rect th e cou rse thereof so as promptly to ascer tain the jurisd ictional f acts and fully to ga

ther information bearing upon the current condition

and futur e welfa re of pe rsons subj ect to this Act." 705 IL CS 405/1--2(2) (West 2004). This po li cy c ou ld ha rd ly b e f ul fi ll ed by c on si de ri ng ev id en ce on ly about past rather than current condition s and the p ast rathe r than the future w elfare

of persons subject to this Ac t. The State argue s that, i n order to have the court consider evidence arising after the initial hearin g, respondents should have filed a motionto modify or vaca te the temporary

custody order, pursuant to section 2--10(9) of the Act. See 705 IL CS 405/2--10(9) (West 2004). We believe suchNo. 2--06--0902

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a motion would have been appropriate had the parents re ceived proper notice of the original shelter
care hearing and

now wished to provide evidence of changed circumstances. Howe ver, a rehearing
onthe State's petition is not an effort to modify or vacate the court's prior orde r. Such a rehearing is a de novo hearing on

the State's petition, held to allow the parents, who were not given notice of the initial hearing, to exercise their statutory rights. A de novo hearing is " '[a] new hearing of a matter, c onducted

as if the original hearing had not taken place.' " Cook County Board of Revie w
v. Property Tax Appeal B oard , 339 I ll. App. 3d 529, 537 (2002), quoting Black's Law Dictionary 447 (7th ed. 1999) . Thus, it is

as if no he arin g had been he ld on the State's petition in March. It is illogical to conclude that the parents' status on the date of a de novo shelter care hearing cannot be considered. Thus, we find no error in the trial court's consider a tion of the parents' status as unincarcerated and present in cour t rather than present in court but otherwise incarc erated. The State next contends that the trial court erred in finding that there wa s no proba

ble caus e for a finding of neg lect or d

epende ncy and no imme diate an

d urge nt neces sity

for plac ement in shelter care. A trial court

exercises wide discretion in its determinations of the best interests of the child in temporary

custody hear

ings, and these determinations will not be disturbed absent an abuse of discretion or a judgment that is against the manifest weig ht of the evidence. In re A.H. , 195 I ll. 2d 408, 425 (2001). Our review of the evidence revea ls neither an abu se of disc

retion nor a judg

ment that i s agains t the manif

est weight of the evidence. The State allege d that Niki

was a ne glecte d minor in that responde nts did not provid

e proper and nec essary

support f or her w ell being, having "not been able to provide for the minor" since they were arrested on March 12. See 705 IL CS 405/2--3(1)(a) (W est 2004). There was no evidence that responde nts were unable to provide for Nikisince tha tNo. 2--06--0902

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date. Respondents were advised by the police that they ne eded only to provide she lter for 24 hours. The parents made arrang ements that lasted longer than they were advised

wa s n ec es sa ry. Had the State released them within 24 hours as they were originally

advised, it is doubtful that Niki would have been surrendered

to the Addison police. The trial court could re asonably

have determined

that, based up on the adm

onitions re lated by

the polic e, respondents ma de appro priate arrangements for Niki 's care a

t the time o f their a

rrests. R esponde nts were never c ontacte d and gi

ven the op

portunity to make alte

rnate a rrang ements when Doris

was no longer able to care f or Niki or when the petition
was in it ial ly fi led . In addition, when the trial court heard theevidence at the July 26 re hearing, there
was no evidence that respondents could not provide for Niki at that time. The State also alleged that Niki was a dependent minor in that respo ndents we

re arr ested in Co ok County

and that " [b]oth parents remain in custody." Clear

ly, such was not

the case on July 26. Respondents were willing and able to care for their daug hter on July 26, and there was no immediate and urgent

necessi ty to keep Niki from her parents and her home. The trial court's findings were notagains t the manif

est weight of the evidence, and we f ind no abuse of discretion. For these reasons, the judgment of the c ircuit court of Du Page County is affirmed. Affirmed. GROMETER, P.J., and BYRNE, J., concur.