Nos. 2--01--1251 & 2--01--1252 cons.	

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

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In re ALEXIS H., a Minor	)	Appeal from the Circuit Court

	)	of Du Page County.

		)

	)	No. 97--JA--12

	)

(The People of the State of	)	

Illinois, Petitioner-Appellant,	)	Honorable

v. Tracy H. & Stacey S.,	)	Peter J. Dockery,

Respondents-Appellees). 	)	Judge, Presiding.

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In re JUSTIN H., a Minor	)	Appeal from the Circuit Court

	)	of Du Page County.

		)

	)	No. 97--JA--13

	)

(The People of the State of	)	

Illinois, Petitioner-Appellant,	)	Honorable

v. Tracy H. & Staceey S.,	)	Peter J. Dockery,

Respondents-Appellees). 	)	Judge, Presiding.

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	JUSTICE BYRNE delivered the opinion of the court:

	The minors, Alexis H. and Justin H., were adjudicated

neglected and made wards of the court in March 1997.  The State

subsequently filed a petition seeking termination of the parental

rights of both parents, Tracy H. and Staceey S., under section 2--13

of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2--13 (West

2000)).  During the unfitness stage of the bifurcated proceeding,

the trial court found respondents to be unfit parents.  However,

during the best-interest stage, the trial court found that it was

not in the best interest of the minors to terminate respondents'

parental rights.  The trial court thus denied the State's petition and set the matter for a permanency hearing, as provided by section

2--28 of the Act (705 ILCS 405/2--28 (West 2000)).  The parents do

not appeal from the finding of unfitness.  Rather, in these

consolidated appeals, the State appeals from the order denying its

petition to terminate the parental rights of respondents.  

	Concerned with the finality of the order from which the State

appeals, we ordered the parties to address this court's

jurisdiction to review the trial court's order denying the State's

petition to terminate respondents' parental rights.  Although

neither party initially noted the jurisdictional issue, a reviewing

court has a duty to consider sua sponte its jurisdiction and to dismiss the appeal if it determines that jurisdiction is wanting. 

Ferguson v. Riverside Medical Center, 111 Ill. 2d 436, 440 (1985); Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984).

	Section 2--13 of the Act governs petitions to terminate

parental rights.  There are no time limitations in the Act for

refiling a petition to terminate parental rights after a petition

has been dismissed.  Section 2--13(6) provides that, at any time

before the dismissal of the petition or before the final closing

and discharge under section 2--31, one or more motions in the best

interests of the minor may be filed.  705 ILCS 405/2--13(6) (West

2000).  Section 2--31(1) of the Act (705 ILCS 405/2--31(1) (West

2000)) sets forth the parameters for the duration of the wardship

and the discharge of the proceedings.  It provides that all

proceedings under the Act with respect to any minor for whom a

petition was filed automatically terminate upon the minor's

attaining the age of 19 years or whenever the court determines and makes written factual findings that the health, safety, and the best

interests of the minor and the public no longer require the

wardship of the court.  705 ILCS 405/2--31(1)(2) (West 2000).  

	At the time the State's petition to terminate the parental

rights in this case was filed, the minors were 12 and 14 years of

age.  Rather than terminating their wardship, the trial court

continued the cause for a permanency hearing, which is governed by

section 2--28 of the Act (705 ILCS 405/2--28 (West 2000)).  The order setting the matter for a permanency hearing did not change the status quo of the parties and can be analogized to an order resulting from a permanency hearing.  

	Until the time the permanency goal is attained, the circuit court must conduct permanency hearings at a minimum of every six months to review and reevaluate dispositional orders.  705 ILCS 405/2--28(2) (West 2000).  The court must enter a written

permanency order.  705 ILCS 405/2--28(3)(West 2000).  Such a

modified disposition vacates the original disposition and

supercedes it.  In re Brandon S., 331 Ill. App. 3d 757, 761 (2002).  In the interim, a party may seek review of the permanency goal by

filing a motion under section 2--28(4), which provides that "[t]he

minor or any person interested in the minor may apply to the court

for a change in custody of the minor and the appointment of a new

custodian or guardian of the person or for the restoration of the

minor to the custody of his parents or former guardian or

custodian."  705 ILCS 504/2--28(4) (West 2000).  By statute, "all

of the rights and obligations set forth in the permanency order

must remain open for reexamination and possible revision until the permanency goal is achieved."  In re Curtis B., No. 92010, slip op. at 5 (September 19, 2002).  

	The jurisdictional statement set forth in the State's

appellate brief provides that the appeal is brought pursuant to

Supreme Court Rule 303 (155 Ill. 2d R. 303).  The State confesses

error in citing only Supreme Court Rule 303 and not Supreme Court

Rule 301 (155 Ill. 2d R. 301) as the basis for this court's

jurisdiction to review the order denying the petition, and it

requests that we entertain the jurisdictional analysis under Rule

3031 as well.  An order is final and appealable if it terminates the

litigation between the parties on the merits or disposes of the

rights of the parties either on the entire controversy or on a

separate part thereof.  Blott v. Hanson, 283 Ill. App. 3d 656, 660 (1996).  A "final judgment" is one that fixes absolutely the rights

of the parties.  Flores v. Dugan, 91 Ill. 2d 108, 112 (1982).  A judgment is final if it determines the litigation on the merits so

that, if affirmed, the only thing remaining is to proceed with the

execution of the judgment.  People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 171 (1981). 

	Rule 301 governs appeals from cases in which a final order has

disposed of the entire controversy, and Rule 303 sets forth the requirements that must be met for the preparation and filing of

appeals from final judgments in civil cases. In re Adoption of Ginnell, 316 Ill. App. 3d 789, 791 (2000)

	In Brandon S., the court held that the denial of a section 2-- 28(4) motion to modify custody is not appealable under Rules 301

and 303. Brandon S., 331 Ill. App. 3d at 760.  Analogizing the order to an order resulting from a permanency hearing, the court

found that, because the motion "jumped the gun on the next

scheduled permanency hearing," the order was not final.  Brandon S., 331 Ill. App. 3d at 761.  In In re Alicia Z., No. 2--01--1465, slip op. at 17 (November 7, 2002), we agreed with the analysis in Brandon S., and held that we lacked jurisdiction under Rules 301 and 303 to review the denial of a motion pursuant to section 2--

28(4) of the Act.  See also Curtis B., slip op. at 5 (permanency order entered after a section 2--28(3) permanency hearing is not

final pursuant to Rule 304(a)).  Similarly here, the appeal from

the denial of the petition to terminate parental rights "jumps the

gun" on the next permanency hearing.  Accordingly, we lack

jurisdiction under Rules 301 and 303 to review the denial of the

State's petition.

	The State alternatively asks for leave to appeal pursuant to

Supreme Court Rule 306(a)(5) (166 Ill. 2d R. 306 (a)(5)) so that

the termination order may be timely reviewed.  Rule 306(a)(5)

permits an appeal when the appellant petitions for and the

appellate court grants leave to appeal from an interlocutory order

affecting the care and custody of unemancipated minors.  The filing

of a petition in the appellate court is a prerequisite to invoking

appellate jurisdiction.  166 Ill. 2d R. 306(b).  The State did not

file a petition for leave to appeal but requests that we

nevertheless consider the appeal pursuant to Rule 306(a)(5).  

	In Curtis B., the supreme court agreed with the State that the selection of a permanency goal is not a " ' "final determination on

the merits with regard to the termination of parental rights but, rather, an intermediate procedural step taken for the protection of

and best interests of the child[ren]," ' " Curtis B., slip op. at 4, quoting In re D.S., 198 Ill. 2d 309, 329 (2001), quoting In re K.H., 313 Ill. App. 3d 675, 682 (2000).  Because the rights and obligations set forth in the permanency order are subject to

reexamination and possible revision until the permanency goal is

accomplished, the supreme court determined that a permanency order

entered under section 2--28(3) is interlocutory.  Curtis B., slip op. at 6.  The supreme court held, in part, that a remand for the 

consideration of an interlocutory appeal was appropriate because

the respondent filed a notice of appeal from a section of the

statute that allowed for appeals (section 2--28(3)) but that later

was found unconstitutional.  Curtis B., slip op. at 5-6.  The noncompliance with the filing of a petition was excused because the

appellant had no reason to believe the petition was necessary.  Nevertheless, the supreme court rejected the respondent's argument

that the appellate court must review a permanency order and held

that the appellate court may review such orders as a matter of

judicial economy.  Curtis B., slip op. at 8.

	We found the case of Alicia Z. procedurally distinguishable from Curtis B.  At the time the respondent in Alicia Z. appealed from the dismissal of his motion to modify custody, no case or

statute suggested that section 2--28(4) of the Act was final and

appealable, and, therefore, the respondent had no reason to believe

that Rules 301 and 304(a) would confer jurisdiction and that his

noncompliance with Rule 306 would be excused.  Alicia Z., slip op. at 20.   

	Unlike Alicia Z., there are a few cases where the appellate court has reviewed an order denying a petition to terminate

parental rights, thereby suggesting that an appeal from an order

denying a petition to terminate parental rights is final and

appealable under Rules 301 and 303.  See, e.g., In re K.B., 314 Ill. App. 3d 739 (4th Dist. 2000); In re J.B., 2998 Ill. App. 3d 250 (4th Dist. 1998); In re Perez, 173 Ill. App. 3d 922 (1988).  While none of these cases explicitly addressed whether it had

jurisdiction over the appeal, the State reasonably could read each

of these cases as containing an implicit affirmation by the

appellate court that it had jurisdicition to review the order

denying the petition for termination of parental rights.

	However, as Curtis B. points out, only the failure to file a petition is excused, and the appellate brief is viewed as the

petition itself.  See Curtis B., slip op. at 8.  Therefore, even if we excuse the filing of the Rule 306(a)(5) petition, our decision

to grant an interlocutory appeal under Rule 306(a)(5) rests within

our discretion.  

	Although we may exercise our discretion and entertain jurisdiction if we deem it appropriate, we decline to do so at this

time.  See Alicia Z., slip op. at 20.  While we find it inappropriate to comment on whether we would affirm or reverse the

trial court's decision, we note that the standard of review is

highly deferential.  See In re M.S., 302 Ill. App. 3d 998, 1003 (1999).  Considerable deference is given to the trial court because

the trial court had the opportunity to hear all of the testimony

and arguments and observe the parties and the children.  Moreover, given the length of time that has passed in this particular proceeding and the constant state of change involved here, events may have transpired since the trial court's initial decision that

could affect the status of the case as well as the best interests

of the children.  We believe that the trial court should review and reevaluate its dispositional order before we consider a petition

for appellate review.

	Accordingly, we hold that the order denying the State’s

petition for terminating parental rights was not a final and

appealable order under Rules 301 and 303.  We therefore dismiss the

appeals on the basis of the lack of jurisdiction under Rules 301

and 303.  We decline to entertain the State's appeal under Rule

306(a)(5). 

 	Because we are dismissing the State's appeals, we must also dismiss the State's motion to strike portions of Tracy's appellate

brief, which we ordered to be taken with the case. 

	Based on the foregoing, we dismiss the appeals from the denial

of the State's petition to terminate respondents' parental rights.

	Nos. 2--01--1251 and 2--01--1252, dismissed.

	O'MALLEY and GROMETER, JJ., concur.