Appeal from the Circuit Court of DuPage County, Eighteenth
Judicial Circuit; the Hon. PHILLIP F. LOCKE, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
This appeal brings before us for the second time, the action commenced as a dependency proceeding brought by the State's Attorney of DuPage County with respect to Terry John Bartha. An order was entered declaring the child dependent and transferring custody from the child's natural mother to the child's maternal aunt and her husband. On appeal from that order, this Court reversed and remanded the cause for further proceedings consistent with the Court's opinion as reported in 87 Ill. App.2d 263, 230 N.E.2d 886.
On remand, the trial judge first refused a motion for a change of venue, and then without hearing any additional evidence, entered an order making certain findings of fact but otherwise followed the original order.
This appeal by Phyllis Bartha, the mother of the minor and respondent below, urges that the trial judge's order is against the manifest weight of the evidence and unsupported by the testimony, that the trial court failed to comply with the mandate of this Court by conducting new hearings, and that the trial court erred in not granting a change of venue.
In reversing and remanding the cause from the previous appeal, we noted that in the order adjudicating the dependency of the minor there was no finding that the mother was unfit or unable or unwilling to care for, protect, train, educate or discipline the child, or that it was in the interests of the child to be taken from the custody of the mother. We further noted that in the absence of such findings that we should not be called upon to review the entire record and make the initial findings of fact, and could not consider whether or not the adjudication of dependency was against the manifest weight of the evidence in the absence of findings which we considered mandatory and jurisdictional. See In re Dependency of Bartha, 87 Ill. App.2d 263 (supra), pages 267, 268, 230 N.E.2d 886.
The respondent argues that since the testimony in the original dependency cause concerned events in 1964, 1965 and 1966, they were not entirely timely as to the conditions at the time of the remand, and the cause should have been considered as a new matter on remand. Respondent urges that while the mandate issued in the previous opinion contained no specific directions to the trial court, that a new hearing was in the spirit of the mandate. The respondent calls attention to the comment in the prior opinion:
"There was either conflicting or incomplete evidence on appellant's health, on the child's health, on the appellant's alleged promiscuity, on the appellant's history of financially supporting the child, on the frequency of appellant's visits to the child, and so forth." In re Dependency of Bartha, supra, at page 268.
The trial judge construed this Court's mandate as requiring that he, personally, make the findings of fact on the whole record, and, therefore, denied the motion for the change of venue. We do not consider that this was error. While a decree respecting the custody of the child is exceptional in its character and is always regarded as temporary (see People ex rel. Bukovich v. Bukovich, 39 Ill.2d 76, 81, 233 N.E.2d 382 (1968)), the trial judge, after refusing the motion for a change of venue, offered the respondent the opportunity to present additional proof. Respondent took the position that it was the duty of the State to go forward, and while the State offered to present testimony as to the current status of the child and his progress in school, the Court indicated he did not wish to hear the offered testimony as he felt it had no bearing on the case. While we do not agree with that conclusion as a matter of law, we cannot conclude that the proceedings at this stage were "new," requiring the motion for change of venue to be granted.
We consider then whether or not the findings of the trial judge were against the manifest weight of the evidence.
The order now appealed from made specific findings of fact. *fn1 Considering the whole record, we conclude that the specific findings of the trial judge, material to the question of dependency, are not properly supported by the evidence.
The finding that the child was "very insecure as demonstrated by his poor sleeping habits and constant bedwetting," is not based upon any evidence we have been able to find in the record. Petitioner suggests that it may have been found in a report of a Dr. Sanchez who examined the child and to whose examination the Court referred after the close of the evidence, but there is no inclusion of the report in the record, nor any evidence as to what Dr. Sanchez found. The Court could not properly consider matters heard out of Court and not preserved for review. Cohn v. Scott, 231 Ill. 556, 559, 83 N.E. 191 (1907); In re Dependency of Rosmis, 26 Ill. App.2d 226, 231, 167 N.E.2d 826 (1960). In any event, there is no evidence in the record as to this condition found by the Court or as to who was responsible for the condition or who was in the best position to rectify the condition.
In the order, the trial judge found Phyllis Bartha guilty of promiscuity and that this affected the care and treatment she afforded Terry. The Court also found that the mother had demonstrated her inability to be entrusted with the care and maintenance of the child by failure to provide good moral example and training and by her maintenance of a residence with a man not her husband. The record in support of petitioner's burden of proof on this issue was the testimony of Betty Fessler who was seeking custody, and who claimed that on only one occasion when she came to Phyllis's apartment in 1964 she saw a man in his "underwear." She described the apartment as being "in a mess" and Terry in dirty clothes. Mrs. Fessler also testified that this man was with Phyllis Bartha at a "pool party" at her home in July of 1964. Terry testified that "Carl" was at the apartment at times, that he just visited, but sometimes stayed overnight.
Testimony offered by respondents included a Cook County Public Aid caseworker who made unexpected visits to Mrs. Bartha's apartment and testified that she always found the place to be neat and immaculate. The incident described by Betty Fessler was denied by Phyllis Bartha. Rodney Bartha, the teen-age son of Phyllis, also denied that anyone had ever lived with him and his mother. The mother of both Phyllis Bartha and Mrs. Fessler, Helen Mann, testified that although she had not been to the present apartment, she previously had observed Phyllis taking care of both Rodney and Terry, both in her own home and in Phyllis's home, and that both Rodney and Terry were clothed, fed, disciplined properly, and taught the difference between right and wrong. She said that Phyllis very much exhibited the normal concern of a proper parent toward the children and conducted herself as a moral and Christian person, attending church regularly. She testified that the past living quarters of Phyllis were always clean and neat and "very nice."
A sister of Phyllis and Mrs. Fessler, Mrs. Mary Roberts, testified substantially to the same effect as the mother, and concluded, as did the mother, that Phyllis was a fit and proper parent for Terry, and that she would entrust her own children to Mrs. Bartha's care. ...