No. 3--08--0254 (Consolidated with No. 3--08--0255)

______________________________________________________________________________ Filed September 8, 2008 IN THE AP PE LLATE COU RT OF ILLIN OIS THIR D DI STRICT A.D., 2008 In re C.L. and T.L ., ) Appeal from the Circuit Court ) of the 10t

h Judicial Cir

cuit, Minors ) Peoria County , Illi nois, ) (The People of the State of ) Illinois, ) ) Petitioner-Appellee, ) Nos. 07--JA--281 and ) 07--JA--282 v. ) ) Elizabeth L., ) Honorab le ) Ki m L. Ke ll ey, Respondent-Appellant). ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE WRIGH T deliver ed the opinion of the

court:

______________________________________________________________________________ The State filed two separate juvenile petitions alleging that the minors, C.L. and T.L .,

were ne glecte d becau se of an injurious e nvironme nt while in

the resp ondent' s care. At the time of the petitions, the respondent mother, Elizabeth L. and the minors’ fa ther, Benjamin L., wer

e divorced. Pursuant to the respondent's and father ’s stipulations, the trial court adjudged the children to be neglected. Following the dispositional hearing, the court elected not to make the minors wards of the court but entered a written order following the dispositional hearing. The order found the respondent unfit and father fit, g ranted guardianship of the children to the fa ther,2

and then closed the cases in Nos. 07 JA 281 and 07 JA 282. On appeal, the respondent arg ues that the court erred by

giving guardianship of the minors to the fa ther and then closing the cases. We affirm in part and vacate in part.

BACKGROUND Initially , we note that the record provided to this court consists of: (1) the transcr ipt of the adjudicatory he aring; (2) the transcript of the dispositional hearing ; (3) an exhibit containing photographs of C.L.; and (4) four volumes of the common law record. Volume 1 of the common law rec ord conta

ins docume

nts conce rning C. L.' s case a

nd volume 2

containsdocument s concerning only

T.L.'s case . Volumes 3 and 4 of the common law record contain the following lengthy r eports applicable to both minors in this case and three additional siblings:(1) the disposition al repor

t coveri ng Aug

ust 22, 200 7, to Marc

h 13, 2008; (2) the o

rigina l “Adden dum to Dispositional Hearing” covering Mar ch 13, 2008, through March 27, 2008, and a duplicate c opy of the sa me orig inal rep ort; and (3) an “Addendum to Dispositional Hearing Report” c overing the time from March 27, 2008, to April 2, 2008, the dates before the dispositional hearing . The trial court took judicial notice of the Peoria County file No. 01 JA 15, which has not been made part of this record. By wa y of backg

round, the petition asserts that mother has five children. Mother’s two younge st children are the subject of this appeal. T.L ., a female, was born on December 25, 2002, and C.L., a male, was born on December 2, 2005. Respondent married the father of T.L. and C.L. The dispositional report, discusses that the respondent and the f ather divorced after 19 months of marriage and that their marriag e ended in 2006. Father’s answer in the r ecord3

discloses the marriage was the subject of pr oceedings in Tazewell County in case No. 06 D 413, wh ic h r em ai ns an op en ca se in th at co un ty. The record contains a social history prepared by

a clinical screener for the De partment of Children and Family Servic es (DCFS) based on information collected in September of 2007. This social history, contained in this recor d on appeal, reveals that DCFS focused its attention on C.L. and T.L . after a mandated reporter obse rved C.L. to have multiple bruises in various stage s of healing on his head, face, body and penis. He also had a “busted” lip and swelling to the lef t side of his nose. The record discloses C.L .’s injuries were photographed and he was taken to a physician on Aug

ust 10, 2007. The social history desc

ribes that the children were taken into protective custody , along with their three older siblings, on August 13, 2007. The three olde st children are not the subject of this appeal. The social history re

ports that the court held a shelter care hea ring on August 15, 2007, and placed the children in the temporary custody of their mater

nal grandmother, The same repor t disclose s that the f

ather of T.L. and C.L . later p etitioned the cour t, on Septe

mber 5, 20 07, to vacate a portion of the August shelter ca re order and return the children to him. These she lter care orders are not documented in the r ecord in either No. 07 JA 281 or No. 07 JA 282. The common law record in this appeal begins with the State’s pe tition requesting all of the children be made wards of the court and a lleging the minors to be neglecte d because of an injurious environment. The petitions were filed by the State on November 29, 2007. The record does contain a shelter ca re order dated November 29, 2007, wher ein the court found probable cause for shelter ca re based on proffered evidenc e and by taking judicial notice of4

Peoria County

case No . 01 JA 15. The court c ontinued t he place ment of C.L . and T.L . with thei r father while all other siblings remained with the materna l grandmother. On that date, the biological father of both T.L . and C.L. was personally present in court. However, the shelter ca re order shows the other fathers of the older siblings did not appe ar. On November 29, 2007, the court conducted a first appe arance with the father of T.L . and C.L., finding

him to have

legal s tatus as th

e paren t of T.L . and C.L . based o n patern ity t est results. As previously stated, the f ather of T.L. and C.L . appeared in court on November 29, 2007. That same day , the father stipulated to the allegations in the petitions in his answer and waived s trict pro of there of. I n his answ er, the f

ather a lso wrote : "These minors are the subject of a child custody proceeding before anothe r court and there is not a court order aff ecting custody

or visitation. The other forum i s Tazewell C ounty Family Court case No. 06 D 413." The first appearance with the other fa thers was continued to another date. The rel eva nt p ort ion s of the Sta te’ s ju ven ile pet itio n in Nos . 07 JA 28 1 an d 07 JA 282, filed on November 29, 2007, alleged that, while in the responde nt's care, the children

were ne glecte d becau se of an injurious e nvironme nt. The pe

tition alle ged tha

t on Augu st 10, 2007, a

phy sician examined C.L . and obse rved C.L . to have b

ruising evident o n his head, fa ce, and nose, swe

lling on t he left si de of his f

ace, a s plit lip, an d a bruise on his penis . The p etit ion al leged t hat mo ther ex plain ed the inju ries o ccurre d becau se C.L. b angs his head o n the floo

r. She all egedly

told the do ctor tha

t she would

continue to allow th

is behavior based on another doctor’s advice

. As to T.L., the petition alleged that a phy sician discovered a contagious form of5

impetigo on her le gs on Aug

ust 10, 200 7. The phy sician a lso obser ved anoth er sibling to have a suspected fungal ra sh on her stomach. The petition also alleged that on three separa te dates in 2007, respondent delivered her children to the crisis nursery for care, stating on one of those occ asions that she needed their services because one of her children ran into a window. According to the petition, on another occasion, mother stated that T.L . had a burn on a leg, and that on y et another occasion, respondent had been the victim of domestic violence. The petition further allege d that T.L . informe d the cri sis nurse ry staff tha t respond ent’s boy friend te lls her to bend over and he “beats” her. The petition also recited that respondent had previous indicated re ports for inadequate supervision of her children in 2000, for risk of har m in both 2001 and 2002, for inadequate shelter in 2004, and for inadequate super vision in March of 2007. The petition also note d the res pondent’ s involvem ent in No. 01 JA 15 fro m Februa ry 2001 until January of 2003 and that the status of the oldest three siblings’ fathers was “unfit” as determined by the c ourt in No. 01 JA 15. On February

28, 2008, mother filed an amended answer that stipulated that the State could prove the allegations of the petition asserting the children were neglecte d because of an inju

rious environment. The State dismissed t

he alleg ations se

t forth in paragraph “1.L

” of the petition. The court requested and rec eived a factual basis from the State and adjudged all five siblings to be neg lected. The factual basis recited by the State is included in the transcript of the proceedings and is also a part of this rec ord. According to the factual basis, a phy sician6

concluded that C.L.’s injuries were not consistent with head banging. The State offer ed photographic exhibits depicting C.L. with visible bruising. The factual basis described a physician’s finding s that T.L. had impetigo and another sibling had a rash on her stomach. The State described that the staff at the crisis nursery observed T.L. to have a

burn on a leg evident during an intake at the center. The State described that mother reported to the crisis nursery staf

f that she was the victim of domestic violence and that T.L . also reported to the staff that in February of 2007 respondent’s boyfriend, “Joe”, beat T.L. af ter telling her to bend over. As part of the factual basis, the State requested the c ourt to take judicial notice of the file i n No. 01 JA 15 and repo rted to the

court the previousstatus of indicate d report s involving mother and prior investigations by DCFS. Based on the matters recited into the record, the court found all five minors to be neg lected as alleged in the petition and conti nued t he mat ter fo r a dis posi tion al hear ing. The dispo sitional he aring t ook place on April 3, 2008. This hearing concer ned all five siblings, that is, C.L. and T.L . and three of the respondent's other c hildren by two other fa thers. At the conc lusion of th

e hearing, af

ter much discussio n, the cou

rt orally pronounced its findings as they related to C.L. and T.L . The court found the father to be fit and sta ted that th

e court w as closing C.L .’s and T .L.’ s cases. The cour t went on to make the other three siblings wards of the cour t. The court’s findings are included in a preprinted form order designated a s “Form 466" in the lower left hand corne r of the page. Mother filed a timely notice of appeal from the court’s order.

ANA LYSIS7

Mother only appea

ls from that portion of the dispositional order that awards guardianship of the minors to their father and closes the juvenile case without making the minors wards of the court in Nos. 07 JA 281 and 07 JA 282. The State argues that the court’s decision to avoid making the minors wards of the court wa s in the best interests of the minors and should not be set aside unless against the manifest weig ht of the evidence. The proc eeding s in this ca se are g overned by t he Juvenile

Court Act

of 1987 (A

ct) (705 IL CS 405/1--1 et seq . (West 200 6)). Und er the Act, after

the cour t determines that a child is neglected, the court is required to hold a dispositional hearing . 705 IL CS 405/2-- 21(2) (We st 2006). A

t this hear ing, the court mus t first de

termine w

hether t he minor isto be made a ward of the court. 705 I LCS 405/2--22(1) (West 2006). Only after a finding that the minor should be made a ward of the court can the c ourt issue a dispositional order affecting the future conduc t of the parents. 705 IL CS 5/2--23(1) (West 2006). Likewise, the cour t’s consid eration of the ne ed for g

uardian ship and w

hether a parent i s 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. 705 I LCS 405/2--27(1)(a) (West 2006). In this case, the trial court found T.L . and C.L. to be neglected, and then held the required dispositional hearing. Sometime after the hear ing, the court signed and issued a written form order, titled as a dispositional order. The prepara tion of the order is not acknowledged in the transcript of the proc eedings. Regardless, the form order selected in Nos. 07 JA 281 and 07 JA 282, marked as “Form 46 6,” inclu ded a pre printed f inding th at it was in

the best in

terest of the child ren to be made wards of the court. However , in the lower portion of the preprinted form, the8

judge d id not mark

the box that

would hav e indica

ted the ju dge’s intention to make both minors wa

rds of the court. I mportantl y, t he judg e verba

lly a nnounce d on the record, in open court, that he was declining the reque st to make either T.L. or C.L . a ward of the

court. The court’s verbal findings are se t forth below: “Mr. L*** is fit per the repor t and all the evidence before the court. The question as to L*** is, do I c lose the case now, because I do feel the guardianship is appropriate in Mr. L *** as evidenced by that report, or do I keep wardship open f

or a period of time. And the court is going to find that Mr. L*** provides a stable environment. He provides permanency

for the child ren. The childre n have been with him

for a wh ile and the court i s going to adopt the recommendations of the g uardian ad litem and the People and close this matter. “ Much late

r in the record the

court sta tes: “ The court finds for all children, all three childre n, other than the L*** children, they

need to be wards of the court and g uardianship needs to be plac ed with the

Departm ent of Chil dren and

Family Service s with right to place. As to L***, I ’m closing that with some order of visitation to be ascertained after the lunch hour.” The best interest f

inding th at was pr

eprinte d on the the

form ord er was inconsiste

nt with the lower portion of the same order where the judge did not mark the box making the minor’s9

wards of the court. The case law provide s that in this situation, the court’s verbal pronouncement controls over any

conflict created by

the written order. In re K.L.S-P. , 381 Ill. App. 3d 194, 195 (2008); In re Taylor B. , 359 Ill. App. 3d 647, 651 (2005). Thus, we conclude from this state of the record on appeal that the court did not make either C.L. or T.L

wards of the court. Juvenile court is a forum most caregivers do not desire to enter but a re compelled to by circumstances bey ond their control. In the context of neg lect and abuse cases, the Juvenile Court Act allows the State to intervene in the decision making of pare nts, custodians, and/or guardians of children under very

narrow circumstances. Those circumstanc es require a finding by the juvenile court judge that it is in the best interest of the children at risk to become wa rds of the court. Without this finding, the juvenile court doors remain closed, even after a n emergency shelter care order has temporar ily affected the placement of the children. The juvenile court judge is not required to make eve ry child a wa

rd of the court based on the State’s petition, but must selectively designa te children to become wards of the court, who otherwise do not have a parent or parents who will act in the best interests of the children without some degree of court intervention. When comparing the parental circumstance s relevant to C.L. and T.L . to the circumstances of the other older siblings that were designated to become wards of the c ourt, a distinction emerges that supports the court’s ruling reg arding T.L. and C.L . The fathers of the other siblings previously ha d been found unfit by the court in No. 01 JA 15 and that finding remained unchanged. Ba sed on these circumstances, the trial court did not have the option of placing the oldest three siblings with a fit biological par ent following the court’s undisputed finding of mother’s neglect. I n contrast, the father of T.L . and C.L. had not previously been10

found to be unfit and was not alleged in this petition as unfit and the court did not rece ive any evidenc e that he

would be p otentiall

y a busive or neglectful. Furthermore, the judge order ed the mother in this case to receive services to improve he r parenting skills as part of the other dispositional orders entered in the r elated juvenile cases for her three oldest c

hildren. Additiona

lly, the part

ies and th e court d iscussed the fac t that Tazewell Co unt y cas e No . 06 D 41 3 re mai ned ope n an d pr ovi ded a fo rum for eit her par ent of T .L. a nd C .L. to modify visitation and custody matters. Although it is not clear from the record what the status of the c ustody orders we

re in No. 06 D 413, neither p arty

request ed eithe r a tran sfer or

the conso lidation of

the divor ce and juvenile cases. As the court considered closing the juve nile files, the parties were very aware that once closed, the Tazewell County cour t that had exercised its jurisdiction to order the dissolution of the marriage could, if requested, decide issues related to custody and visitation. In this case, the court did not make the decision regarding wardship lig htly. The court’s concern for the well-being of all five minors is evident of record. The court’s working knowledg e of leng

thy exhibits, all filed wit

h the cour t on the da

te of the disposition al hear

ing, is apparent from the transcript of proceedings. The court struggled with the de sire to restore T.L.’s and C.L.’s family

unit with mother and the other siblings by ba lancing this concern with the need to provide permanency

to C.L. and T.L ., who were doing well with their biological fa ther. In this case, the permane

ncy g oal for T.L. and C.L . to remain home with their biological father was part of the juvenile recor d. The reports submitted to the court as part of the dispositional evidence document that C.L. and T.L . are well adjusted in father’s home and thriving as a result of the stability he has provided for the minors since September of 2007.11

There is nothing in the record to sugg est the court’s decision to close the juvenile files and allow the divorce court to address the parental issues was unf ounded or erroneous in light of the circumstances of this case. Even though we observe the rec ord supports the trial judge’s decision to close the files before making t he childr en ward s of the c ourt, the Juvenile Cou

rt Act doe s not requ

ire a court to enter any finding before closing a juvenile c ase at this stage. The structure of the Juvenile Court Act is premised on the fact that parents should be allowed to raise their children without intervention or the risk of termination of parental rights by the State, unless certain criteria are

met. Even when one parent is determined to be unfit under the Juvenile Court Act, and wardship arises, the other parent’s rights are superior to the State’s inter est. In re Ta.A., No. 3- 07-0513, slip op. at

7 (July 7, 2008); In re Ryan B., 367 Ill. App. 3d 517, 520 (2006). By analogy , when one parent is found dispositionally unf it and the other parent is without fault and willing to assume the role of parenting the childre n, a court may not inter

fere unless the court determines it is in the best interests of the minors to become wards of the court. That said, a biological parent has superior rights to the State and ma y step in to parent his or her children when the other parent for some reason c an no longer properly exercise his or her parental responsi bilities. Such is the case at bar. After the court found the children to be neg lected by mother, the children still had a biologic al fathe

r who wasready , willing , and leg ally able to ste

p in to prot

ect and p rovide f or his children and by a

ll accounts has done so. Mother does not dispute the temporary placement of the children with this father or the court’s subsequent finding the c hildren had been neglected.12

No one has claimed that this father, who was divorced fr om mother, contributed to the injurious environm ent that r esulted in the dete rmination of neg lect. Parental rights exist unless voluntarily surre ndered or involuntarily te rminated. After the court closes the files, the parental rights of mother a nd father remain intact and both remain leg al gua rdi ans of t hes e ch il dre n. It was not nec ess ary t o de si gna te o ne o r th e ot her as g uar di an. In fact, without designating the minors to be wards of the c ourt, the judge could not name a guardian. 705 I

LCS 405/2-27(1) (West 2006). The portion of the order tha t names father as guardian exceeded the scope of the court’s authority a

fter closing the cases and must be vaca ted. Moreo ver, t he ord er of vi sitat ion ex ceeded the co urt’s autho rity afte r the j udge

announc ed the de cision to c lose the c ases. The recor d shows the

court an d the par

ents desi red to have the siblings stay

in contact with each other and their mother at combined sibling a nd parental visits. The parties hoped these visits could be supervised by DeLisa Jo Dorelle/Munn, the designated supervisor of visitation. However, the re cord suggests the supervisor of visitation would not supervise visits without a written court order. The single-page visitation order in this case included the case numbers for all five juvenile files corresponding to mother’s biological c hildren, including C.L. and T.L . While the court’s purpose in including Nos. 07 JA 281 and 07 JA 282 in that visitation order with the other siblings is unders tandable , even the court wa s cogniza

nt of the f act that c losing th

e juvenil e case would not prevent either father or mother from see king a different schedule for visitation befor e the co urt in Tazew ell C ount y where the ir div orce oc curred . To th is end , the j uveni le cou rt jud ge said: "I'm a lso going to look [at], as part of [mother’s] service plan,13 visitation with the children at the visitation center. So I want y ou to know that, but a nyt hing I do here w on't stop

her fro m seeking

relief in the D ca se in Tazewell County." We note, mother does not request that the visitation order should be set aside. I n the context of

this reco rd, we do not view th

e order of visitat ion bear ing all f ive juven ile case numbers a s an expre ssion of the court’ s intent to t reat T.L . and C.L . as war

ds of the c ourt. However, after closing the juvenile c ases, the visitation order is unenforceable beca use neither T.L. nor C.L . is a ward of the court nor are their juvenile c ases still open. Dispositional decisions, such as visitation orders, findings of unfitness, and determinations of guardianship are statutorily predicated upon the court first making the minors wards of the court. See, e.g. , 705 IL CS 405/2--23(1), 2--27(1) (West 2006). The trial court’s order regarding

guardianship, which has been challeng ed by mother in this appea l, was unauthorized under sections 2-23(1) and 2-27(1). 705 I LCS 405/2-23(1),2-27(1)(West 2006). Related thereto, the trial court's consideration of dispositional unfitness was a lso premature and unauthorized, under section 2--27(1), since these children w ere not made wards of the court. See 705 IL CS 405/2--27(1) (West 2006). Dispositional orders that are not authorized by statute are void and must be vacated. In re D.W. , 214 Ill. 2d 289, 309 (2005). Therefore, we vacate that portion of the order, challenged by mother in t

his case , gran

ting gu ardians hip of the

minors to th

e fathe r. Additionally , we vac ate the cour t’s findin gs in Nos . 07 JA 281 and 07 JA 282 de claring mother un

fit and fa ther fit. The difficulty in this case ste ms from the failure to strike preprinted, but inapplicable, findings in this case and directly resulted from the missuse of a standardized form that was not14

designed to be use d in ever y c ase. While

useful to ols in the chaotic a nd emotion al juveni le

courtro om, form o

rders sh ould not be

used to de

legate the task f or making

an accu rate re cord to courtroom staff . This is a duty of the judge. For the foregoing reasons, regarding the written order issued by the Peoria County circuit court on April 3, 2008, we: (1) affirm the trial court’s decision to close these cases; and (2) vacate those portions of the written order granting guardianship of the minors to the father, finding mother dispositionally unfit and declaring father to be fit. Affirmed in part and vacated in part. O’BRIEN, J., concurs. PRESIDING JUSTICE McDADE, concurring in part and dissenting in part: The majority finds that because the children -- T.L., age 5, and C.L., age 2 -- were not made wards of the State, the trial court was without authority to enter its orders finding the mother unfit, finding the father fit, awarding guardianship of the children to the father, directing the mother to complete specified service tasks, and scheduling the mother’s supervised visitation with the children. All of those orders have been vacated by the majority, and I concur with that action. I also agree with the majority’s conclusion that the trial court devoted a great deal of effort and attention and exhibited care and sensitivity in its consideration of these cases.15

However, the majority affirms the order closing these cases and, for the reasons that follow, I dissent from that decision and would find that the matter needs to be returned to the circuit court and done over properly. I do not think we can begin to responsibly assess whether the ultimate disposition of the children was correct because we have been presented with a procedural quagmire. Father has been given custody of these children by the circuit court in this case. The record contains a shelter care order issued on November 29, 2007. Nonetheless, the dispositional report states that: (1) on September 5, 2007, the father filed a petition to vacate the shelter care order; (2) the petition was granted; and (3) the children were placed with the father. The record does not contain either a petition by the father to vacate the shelter care order, or a court order granting such a petition and placing the children with the father. Thus, the record is unclear about how and when and with what judicial findings the children initially went from custody of the mother to the custody of the father. This placement with the father was confirmed in the dispositional order finding the father fit and declaring him guardian. We have, quite properly I believe, vacated that finding of fitness and award of guardianship. Thus, one bottom line in this case is that we have custody awarded to the father16

with no determination of record that he was a fit person to secure the children’s release from shelter care or to be designated guardian. Yet another bottom line is that we have a mother who has been stripped of custody on a determination that the children were neglected. There is now, however, no finding that she was unfit and no order of visitation or an opportunity to receive rehabilitation services necessary to reclaim C.L. and T.L. For these reasons alone I do not believe we can responsibly affirm the order closing the cases. Those are not, however, my only reasons. I am also concerned that we are being asked to review the propriety of closing these cases on a record lacking information critical to that review. As long as we cobble together bits and pieces of information, hoping that we have gleaned everything that is relevant, neither we nor the trial courts nor the parties will come to grips with the need for a complete record. Moreover, our increasing reliance on form orders where boxes are sometimes checked and sometimes not; where, as here, the form itself is internally inconsistent (at least to the extent of requiring (or presuming) a finding that it is in the best interest of the children to be made wards of the State, but also including a box permitting a contradictory finding); and where the written narrative findings demanded by the statute are non-existent is17

troubling. It deprives us of sufficient information to make well-reasoned and fair decisions on appeal, negatively impacting their reliability and compromising the legislature’s stated goals. Finally, the mother in this case will get state-provided services and visitation with C.L. and T.L., but only because of the other cases in which she is a party. Absent those cases, the trial court’s disposition leaves her with a finding that she is unfit, that she cannot have custody of her children, and that she will not have services necessary to reclaim them. Our decision - - again, absent the other cases -- leaves her technically fit, but without her children and without resources to earn them back. That may be the appropriate disposition, but we cannot really tell from this record. For all of these reasons, I cannot agree that the cases should remain closed and I dissent from that decision.