Illinois Official Reports

Appellate Court

In re Ashli T., 2014 IL App (1st) 132504

Appellate Court 

Caption

In re ASHLI T., a Minor, Respondent-Appellant (The People of the 

State of Illinois, Petitioner-Appellant, v. Tonesha M. and Scott T., 

Respondents-Appellees).

District & No. First District, Second Division

Docket Nos. 1-13-2504, 1-13-2507 cons.

Filed January 21, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

On appeal from orders of the trial court granting sole legal custody of 

respondent to her father, dismissing the State’s petition for 

adjudication of wardship and closing the proceedings, the dismissal of 

the petition for adjudication of wardship was vacated and the cause 

was remanded for further proceedings consistent with the Juvenile 

Court Act, since the trial court had no authority to grant permanent 

custody without conducting adjudicatory and dispositional hearings 

and the finding that dismissal of the petition for adjudication of 

wardship was in respondent’s best interest was clearly erroneous.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 13-JA-462; the 

Hon. Robert Balanoff, Judge, presiding.

Judgment Order vacated; cause remanded.
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Counsel on

Appeal

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, 

Mary P. Needham, and Nancy Kisicki, Assistant State’s Attorneys, of

counsel), for the People.

Abishi C. Cunningham, Jr., Public Defender, of Chicago (Evelyn G. 

Baniewicz, Assistant Public Defender, of counsel), for appellee 

Scott T.

Robert F. Harris, Public Guardian, of Chicago (Kass A. Plain and 

Christopher J. Williams, of counsel), guardian ad litem.

Panel JUSTICE SIMON delivered the judgment of the court, with opinion.

Presiding Justice Harris and Justice Pierce concurred in the judgment 

and opinion.

OPINION

¶ 1 Ashli T., through the office of the public guardian, and the State appeal from orders of the 

circuit court of Cook County granting sole legal and physical custody of Ashli to her father, 

Scott T., and dismissing the petition for adjudication of wardship filed as to Ashli by the State.

On appeal, the public guardian and the State contend that the court did not have authority to 

grant permanent custody of Ashli to Scott without conducting adjudicatory and dispositional 

hearings and that the court’s finding that dismissal of the petition for adjudication of wardship 

was in Ashli’s best interest is clearly erroneous. For the reasons that follow, we vacate the 

order dismissing the petition for adjudication of wardship and closing the proceedings and 

remand the matter to the circuit court for further proceedings consistent with the Juvenile 

Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-1 et seq. (West 2012)).

¶ 2 BACKGROUND

¶ 3 On May 20, 2013, the State filed a petition for adjudication of wardship as to Ashli, who 

was born on March 29, 2013, and is the daughter of Tonesha M. and Scott. The State alleged 

that Ashli was abused and neglected and that her environment was injurious to her welfare.

The State asserted that Ashli faced a substantial risk of physical injury because Tonesha had 

three other children in the custody of the Illinois Department of Children and Family Services 

(DCFS) based on findings of abuse and/or neglect and had not completed recommended 

services and paternity had not yet been established. The State also filed a motion for temporary 
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custody, asserting that there was probable cause to believe that Ashli was neglected and that 

there was an immediate and urgent necessity that she be taken into custody.

¶ 4 That same day, the circuit court conducted a hearing on the petition and motion. Scott 

testified that he believed he was Ashli’s father and requested a paternity test. Edwine Reese, an 

investigator for DCFS, testified that Tonesha had three children prior to Ashli and that none of 

those children were in her care and custody. Reports had been filed against Tonesha regarding 

her eldest daughter in 2008 for cuts, welts, and bruises and in 2009 for cuts, welts, bruises, and 

sexual penetration. Tonesha was convicted of criminal assault of her eldest daughter, served 

31⁄2 years of a 7-year sentence, and was currently on parole. Tonesha had been found to be in 

need of anger management, substance abuse, and parenting services, as well as a psychological 

assessment and counseling, but she only completed some of the necessary services while 

incarcerated and was no longer participating in any of those services. Reese recommended 

temporary custody for Ashli because Scott’s paternity had not yet been established and there 

was a risk of harm to Ashli if she was returned to Tonesha’s custody and care.

¶ 5 Following the hearing, the court entered an order granting temporary custody of Ashli to 

DCFS, finding probable cause to believe that Ashli was abused and neglected and that an 

urgent and immediate necessity to remove Ashli from Tonesha’s custody existed due to 

Tonesha’s prior acts of abuse and failure to complete required services. The court also ordered 

a paternity test for Scott and supervised visits with Ashli for Scott and Tonesha.

¶ 6 On July 3, 2012, Scott filed a motion requesting an order finding that he was Ashli’s 

biological father, vacating the temporary custody order, finding that he was willing and able to 

care for Ashli, and returning Ashli to his care, custody, and control. Scott asserted that it was in 

Ashli’s best interest to be placed in his care and custody because he did not present any causes 

for concern as to Ashli’s safety, his home was safe and appropriate, he was willing and able to 

obey all reasonable terms and conditions attached to a protection order, he was willing to 

participate in any and all services recommended by DCFS, he was employed and earned a 

sufficient income to meet Ashli’s needs, he had formed a care plan with various family 

members to provide care to Ashli while he was at work, and he had successfully parented other 

children.

¶ 7 On July 10, 2013, the court conducted a hearing on Scott’s motion to vacate the temporary 

custody order. The State presented the results of a paternity test, which identified Scott as 

Ashli’s biological father, and Danika Williams, a case manager at Lutheran Child and Family 

Services, testified that she had conducted an assessment of Scott and determined that it was in 

Ashli’s best interests to be placed in his custody for the reasons set forth in his motion. During 

Williams’ testimony, the court asked Scott’s attorney if Scott was asking the court to “close the 

case,” and counsel responded that Scott was not. At the conclusion of the hearing, the court 

found that it was in Ashli’s best interest to be placed in Scott’s custody and that there was no 

immediate and urgent necessity to remove Ashli from his custody. The court also stated that it 

wanted to close the case that day, that it was going to conduct some research to determine 

whether it could do so, and that it would reconvene with the parties later that day.

¶ 8 When the parties reconvened, Scott’s attorney stated that he was not asking for dismissal of 

the petition for adjudication of wardship, but was asking for a finding that Scott was willing 
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and able to care for Ashli and that matters “then proceed in an expedited fashion through 

adjudication and disposition.” The court stated that it thought it was in Ashli’s best interest to 

dismiss the petition, that it was required by supreme court precedent to conduct a hearing as to 

whether doing so was in Ashli’s best interest prior to dismissing the petition, and that it was 

sua sponte ordering that a “best interests hearing” be conducted immediately. The court 

explained that it wanted to proceed in this fashion because it was preferable to limit a family’s 

interaction with the juvenile court system as much as possible. At this point, Scott’s attorney 

stated that Scott was now seeking to have the case closed that day.

¶ 9 Williams testified at the hearing that she believed it was in the best interests of Ashli, Scott, 

and the community to close the case and place Ashli in Scott’s custody that day. Tonesha 

testified that although Scott knew of her pregnancy and Ashli’s birth, he did not become 

involved in Ashli’s life until the petition for adjudication of wardship had been filed, and that 

she intended to pursue her rights as to Ashli in domestic relations court. Following the hearing, 

the court stated that it was in Ashli’s best interest to dismiss the petition for adjudication of 

wardship and place her in Scott’s custody, that it was going to amend the temporary custody 

order to reflect that there was no immediate or urgent necessity to place Ashli in the custody of 

DCFS, and that it was going to place Ashli in Scott’s custody and dismiss the petition.

¶ 10 The court entered various written orders on July 10, 2013. The court entered an order 

finding that Scott was Ashli’s biological father. The court also entered an order granting Scott 

custody of Ashli, finding there was no immediate and urgent necessity to remove Ashli from 

Scott’s care, stating that “the probable cause finding that the court entered on May 20, 2013 

stands,” and stating that the court would find an urgent and immediate necessity to remove 

Ashli from Tonesha’s care if Ashli was in her care. In addition, the court entered an order 

closing the proceedings, finding that the family was not in need of further monitoring by the 

court and that it was in Ashli’s best interest to close the case and ordering that the petition for 

adjudication of wardship was dismissed and that Scott was granted legal custody of Ashli. On 

July 11, 2013, the court amended its order to specify that it was granting “sole legal and 

physical custody” of Ashli to Scott.

¶ 11 ANALYSIS

¶ 12 The Juvenile Court Act sets forth the process by which a court will decide whether a child 

should be removed from his or her parents and made a ward of the court. In re Arthur H., 212 

Ill. 2d 441, 462 (2004). The State may initiate proceedings by filing a petition alleging that the 

minor is abused or neglected and that it is in the minor’s best interest to be adjudged a ward of 

the court. 705 ILCS 405/2-13 (West 2012). Upon the filing of a petition, the court shall 

conduct a temporary custody hearing to determine who will be granted temporary custody of 

the minor until further hearings are conducted as to whether the minor should be adjudged a 

ward of the court and placed in the permanent custody of someone other than the minor’s 

parents. 705 ILCS 405/2-10 (West 2012); In re A.H., 195 Ill. 2d 408, 417 (2001). These 

additional hearings consist of an “adjudicatory hearing,” a “dispositional hearing,” and a 

“permanency hearing.” A.H., 195 Ill. 2d at 417.
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¶ 13 At the temporary custody hearing, the court must first make a threshold determination as to 

whether there is probable cause to believe that the minor is abused or neglected. Id. If the court 

finds there is probable cause to believe that the minor is abused or neglected, then it must 

conduct a hearing at which all relevant parties shall testify. 705 ILCS 405/2-10(2) (West 

2012). Following a hearing, the court may release the minor into the custody of a parent, 

guardian, or custodian; release the minor pursuant to a protection order; or prescribe shelter 

care and order that the minor be kept in a suitable place designated by the court or a shelter care 

facility. Id. To prescribe shelter care, the court must find that doing so is “a matter of 

immediate and urgent necessity for the safety and protection of the minor” and that reasonable 

efforts have been made or cannot be made to prevent or eliminate the necessity of the minor’s 

removal from his or her home. Id. Once a temporary custody order has been entered, any party 

may file a motion to modify or vacate that order. 705 ILCS 405/2-10(9) (West 2012).

¶ 14 At an adjudicatory hearing, the court shall determine whether the minor is abused or 

neglected (705 ILCS 405/2-18 (West 2012)) and, if the court finds that the minor is abused or 

neglected, it shall conduct a dispositional hearing pursuant to section 2-22 of the Juvenile 

Court Act (705 ILCS 405/2-22 (West 2012)) to determine whether to make the minor a ward of 

the court (705 ILCS 405/2-21(2) (West 2012)). At a dispositional hearing, the court shall 

determine whether it is in the best interests of the minor and the public to make the minor a 

ward of the court and, if the minor is made a ward of the court, then the court shall enter a 

disposition order which serves the health, safety, and interests of the minor and the public. 705 

ILCS 405/2-22(1) (West 2012). If the minor is made a ward of the court due to abuse or 

neglect, the court may enter a disposition order: (1) continuing custody with the minor’s 

parent, guardian, or custodian; (2) placing the minor in legal custody or guardianship; (3) 

restoring custody to the parent, parents, guardian, or custodian on condition of compliance 

with an after-care plan; or (4) partially or completely emancipating the minor. 705 ILCS 

405/2-23(1)(a) (West 2012). Any disposition order may provide for protective supervision or 

include an order of protection. 705 ILCS 405/2-23(2) (West 2012).

¶ 15 In this case, the State initiated proceedings by filing a petition for adjudication of wardship 

and a motion for temporary custody, alleging that there was probable cause to believe that 

Ashli was abused and neglected because Tonesha previously abused her eldest daughter and 

had not since completed recommended services and paternity had not yet been established.

The court conducted a temporary custody hearing, found there was probable cause to believe 

that Ashli was abused and neglected and there was an immediate and urgent necessity to 

remove Ashli from her home, and granted temporary custody of Ashli to DCFS. Scott filed a 

motion to vacate the temporary custody order, asserting that a paternity test confirmed that he 

was Ashli’s father and that it was in Ashli’s best interest to be placed in his custody, and the 

court conducted a hearing on the motion and found that it was in Ashli’s best interest to be 

placed in Scott’s custody. The court then conducted a “best interests hearing” and entered an 

amended temporary custody order granting “sole legal and physical custody” of Ashli to Scott.

The court also entered an order closing the proceedings and dismissing the petition of 

adjudication of wardship.
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¶ 16 The public guardian and the State contend that the court could not grant permanent custody 

of Ashli to Scott without first conducting adjudicatory and dispositional hearings and that the 

court’s decision that it was in Ashli’s best interest to dismiss the petition is clearly erroneous 

because it was based on the incorrect belief that the court had entered a valid order granting 

Scott permanent custody of Ashli. Scott responds that the court could grant permanent custody 

prior to adjudication or disposition and that the court correctly determined that it was in Ashli’s 

best interest to be placed in his custody.

¶ 17 As an initial matter, we must clarify the procedural posture of this case to determine the 

standard of review which should be applied to the court’s decision to close the proceedings and 

dismiss the petition. The record shows that, after having conducted a hearing on Scott’s motion 

to vacate the temporary custody order, the court stated that it wanted to close the case that day 

and was going to conduct a “best interests hearing” because it was required to do so prior to 

closing the case by our supreme court’s holding in In re J.J., 142 Ill. 2d 1 (1991). In J.J., the 

court held that “when the State moves to dismiss a petition alleging abuse of a minor, the 

circuit court shall consider the merits of the motion and determine, on the record, whether the 

dismissal is in the best interests of the minor, the minor’s family, and the community.” Id. at 9.

The court stated that “both the State’s Attorney and the court are charged with the duty of 

ensuring that, at each step of the wardship adjudication process, the best interests of the minor, 

the minor’s family and the community are served” and that the court “has not only the 

authority but the duty to determine whether the best interests of the minor will be served by 

dismissing a petition alleging abuse of a minor.” Id. at 8-9. Thus, when the court conducted a 

“best interests hearing” in this case, it was conducting a hearing as to whether to dismiss the 

petition, and not an adjudicatory or dispositional hearing. The decision to dismiss a petition on 

the basis of the minor’s best interest lies within the discretion of the circuit court. Id. at 11. As 

such, we review the court’s decision to dismiss the petition under an abuse of discretion 

standard. A court abuses its discretion when its ruling is arbitrary, fanciful, or unreasonable, or 

when no reasonable person would adopt its view. In re Marriage of Callahan, 2013 IL App 

(1st) 113751, ¶ 27.

¶ 18 Following the “best interests hearing,” the court found that it was in Ashli’s best interest to 

close the proceedings, dismiss the petition, and place her in Scott’s custody. To that effect, the 

court entered an amended temporary custody order granting Scott “sole legal and physical 

custody” of Ashli. However, the purpose of a temporary custody order is to decide who will 

have custody of the minor until permanent custody is determined. A.H., 195 Ill. 2d at 417. By 

its very nature, a temporary custody order does not confer permanent custody, but only 

provides temporary custody in anticipation of an order determining permanent custody to be 

entered later in the proceedings. Thus, the court did not confer permanent custody of Ashli to 

Scott in the amended temporary custody order, as the order would not have any legal effect 

once the proceedings were closed. As the court made clear in its written order and oral 

statements that it believed that it was in Ashli’s best interest to be placed in Scott’s permanent 

custody and removed from Tonesha’s custody, the court abused its discretion when it 

dismissed the petition and closed the proceedings without first placing Ashli in Scott’s 

permanent custody.
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¶ 19 Although Scott maintains that the court granted him permanent custody of Ashli, we 

determine that the record does not support a characterization of the amended temporary 

custody order as an order granting permanent custody. Following the conclusion of the “best 

interests hearing,” the court stated that it was going to amend the temporary custody order and 

dismiss the petition and it entered a written order which begins by stating that “the May 20, 

2013 temporary custody order is amended as follows.” Thus, the court’s oral statement and its 

written order both indicate that the court intended for its order granting custody to Scott to be a 

temporary, rather than permanent, custody order. To the extent that portion of the written order 

granting “sole legal and physical custody” of Ashli may indicate that the court intended to 

enter a permanent order, the court’s oral pronouncement that it was entering an amended 

temporary custody order controls over any conflict created by the written order. In re K.L.S-P., 

381 Ill. App. 3d 194, 195 (2008).

¶ 20 In addition, a number of findings in the court’s order are made pursuant to the standards to 

be applied at a temporary custody hearing. At a temporary custody hearing, the court must 

determine if there is probable cause to believe that the minor is abused or neglected and if there 

is an immediate and urgent necessity to place the minor in shelter care. 705 ILCS 405/2-10(2) 

(West 2012). In its amended temporary custody order, the court found that there was no urgent 

and immediate necessity to remove Ashli from Scott’s care and stated that “the probable cause 

finding that the court entered on May 20, 2013 stands” and that the court would find an urgent 

and immediate necessity to remove Ashli from Tonesha’s care if Ashli was in her care. Thus, 

the court applied the standards relevant to a temporary custody determination in the amended 

temporary custody order. Further, the court’s order was entered in response to Scott’s motion 

to vacate the temporary custody order and prior to any adjudicatory or dispositional hearings or 

orders.

¶ 21 Moreover, even if the order granting Scott custody of Ashli could be characterized as a 

permanent custody order, the court could not enter such an order at this stage in the 

proceedings. After a minor is placed in temporary custody, the court shall conduct an 

adjudicatory hearing to determine if the minor is abused or neglected. 705 ILCS 405/2-18 

(West 2012); Arthur H., 212 Ill. 2d at 462. If the court finds that the minor is abused or 

neglected, then it shall conduct a dispositional hearing to determine whether to make the minor 

a ward of the court. 705 ILCS 405/2-21(2) (West 2012). If the minor is made a ward of the 

court, then the court shall enter a disposition order which best serves the health, safety, and 

interests of the minor. 705 ILCS 405/2-22(1) (West 2012). Possible dispositions include 

continued custody with the minor’s parents and restoration of custody to one or both parents.

705 ILCS 405/2-23(1)(a) (West 2012).

¶ 22 In this case, the court did not conduct an adjudicatory hearing or make a determination as 

to whether Ashli was abused and did not conduct a dispositional hearing or enter a 

dispositional order. The court only found that there was probable cause to believe that Ashli 

was abused and then conducted a temporary custody hearing and issued a temporary custody 

order placing Ashli in the custody of DCFS. The court later amended the temporary custody 

order to place Ashli in Scott’s custody, but never found that Ashli was abused or made Ashli a 

ward of the court.
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¶ 23 Although Scott maintains that the Juvenile Court Act and the case law do not prohibit a 

court from granting permanent custody to a parent prior to adjudication and disposition, 

neither the Juvenile Court Act nor the case law authorizes a court to do so. Rather, the Juvenile 

Court Act distinguishes between temporary and permanent custody by requiring a court to find 

that there is probable cause to believe that the minor is abused or neglected at a temporary 

custody hearing to advance matters to the next procedural stage (705 ILCS 405/2-10 (West 

2012)) while requiring a court to find that the minor is abused or neglected to adjudicate the 

minor a ward of the court to advance proceedings to a dispositional hearing (705 ILCS 

405/2-21 (West 2012)). If a court could enter a permanent custody order on the basis of a 

probable cause finding of abuse or neglect at a temporary custody hearing, then those portions 

of the Juvenile Court Act relating to adjudicatory and dispositional hearings would be 

superfluous, as a court could enter an order determining permanent custody without ever 

advancing to those later stages in the proceedings. Further, a court could grant permanent 

custody of a minor to one parent over the other or to a person who is not a parent without ever 

finding that the minor was actually abused or neglected. As statutory provisions must be 

construed in light of the statute as a whole, keeping in mind the subject it addresses and the 

legislature’s intent (In re M.I., 2013 IL 113776, ¶ 15), and so that no part of the statute is 

rendered meaningless or superfluous (In re Detention of Stanbridge, 2012 IL 112337, ¶ 70), 

we determine that the court could not have entered a permanent custody order at this stage in 

the proceedings.

¶ 24 In reaching that determination, we have considered In re C.L., 384 Ill. App. 3d 689, 695-97 

(2008), in which the appellate court held that the circuit court could close the juvenile court 

proceedings as to two minors without making the minors wards of the court, but then could not 

designate the father the legal guardian, enter orders as to the parents’ fitness, or enter a 

visitation order after the case had been closed. Although this court affirmed the circuit court’s 

decision to close the case prior to making the minors wards of the court, it did so in light of the 

ongoing divorce proceedings between the minors’ parents and the understanding that parental 

issues would be addressed by the divorce court. Id. at 695-96. In this case, there are no ongoing 

divorce proceedings in which matters of custody and parenting will be resolved. Also, in 

vacating the orders as to guardianship, fitness, and visitation, this court stated that dispositional 

orders “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.” Id. at 697.

Thus, the reasoning in C.L. supports our determination that the court in this case could not have 

entered a permanent custody order at this stage in the proceedings.

¶ 25 CONCLUSION

¶ 26 Accordingly, we vacate the circuit court’s order dismissing the petition of adjudication of 

wardship and closing the proceedings and remand the matter to the court for further 

proceedings consistent with the Juvenile Court Act.
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¶ 27 Order vacated; cause remanded.