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In Re Brown

OPINION FILED SEPTEMBER 17, 1980.

IN RE DANIELLE BROWN, A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

JOHN BROWN, RESPONDENT-APPELLANT.) — IN RE DANIELLE BROWN, A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

MELANIE GLIDEWELL, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Vermilion County; the Hon. CARL A. LUND, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 30, 1980.

These consolidated appeals lie from an order of the circuit court of Vermilion County in which the court found the minor to be neglected, found both natural parents unfit, declared the minor a ward of the court and placed her in the guardianship of the Department of Children and Family Services with power to consent to adoption.

Both parents have appealed. Each raises as an issue (1) that the trial court's finding of unfitness as to himself is against the manifest weight of the evidence, and (2) that the trial court erred in failing to make an explicit finding in the order that the appointment of a guardian with power to consent to adoption was in the best interest of the child. Additionally, the mother raises two more issues: (1) that the finding of neglect was against the manifest weight of the evidence, and (2) that the trial court erred in admitting certain medical evidence. We are of the opinion that the finding of unfitness as to the father was against the manifest weight of the evidence and that the order was defective. Hence, we reverse in part and affirm in part.

The record is lengthy and will not be recited here in detail except insofar as it affects the various issues to be discussed. We have examined it in detail and find that by its manifest weight it supports the finding of neglect of the minor, and the unfitness of the mother. It does not support by the same standard the unfitness of the father.

The minor (Danielle) is one of two natural children of the respondents. The respondent mother (Melanie) at a time not material to these appeals divorced the respondent father (John). She was granted custody of Danielle, and John was given visitation privileges and ordered to pay child support. Later, Melanie married one Glidewell, who was convicted and sentenced for the homicide of Danielle's sister, Cassandra. (People v. Glidewell (1979), 78 Ill. App.3d 734, 397 N.E.2d 544.) This homicide occurred on March 29, 1978, and on March 30, 1978, a juvenile petition was filed alleging that Danielle was neglected in that her environment was injurious to her welfare. (Ill. Rev. Stat. 1977, ch. 37, par. 702-4(1)(b).) At that time the court entered an order for temporary shelter care, placing Danielle in the temporary guardianship and custody of the Department of Children and Family Services.

On January 5, 1979, an amended petition was filed which set up in detail the factual allegations concerning Danielle, her natural parents, Melanie and John, and her stepfather, Glidewell. The petitioner's prayer asked: (1) that Melanie and John be found unfit, (2) that the court make a finding that it was in the best interests of Danielle to terminate all parental rights of Melanie and John, (3) that the court place Danielle in the custody and guardianship of the guardianship administrator of the Department of Children and Family Services with authority to consent to adoption, (4) that Danielle be declared neglected as defined in section 2-4(1)(b) of the Juvenile Court Act, (5) that the court make a finding that such neglect was the result of physical abuse, and (6) that the court make a finding that it was in the best interests of Danielle that she be made a ward of the court.

A consolidated adjudicatory and dispositional hearing was held extending over four days, November 28, 29, 30, and December 5, 1979. At the conclusion of the hearing the trial court announced his decision and a written order was filed January 8, 1980. That order, after finding that Danielle was neglected, that she should be made a ward of the court and that Melanie and John were unfit within meaning of "Chapter 40, Section 1501(d), Illinois Revised Statutes," adjudicated as follows:

"A. That said minor is neglected as specifically defined in Chapter 37, Section 702-4, Illinois Revised Statutes, in that her environment is injurious to her welfare.

B. That the minor shall be and is hereby made a ward of the court.

C. That all parental rights of respondents, Melanie Glidewell and John Brown shall be and are hereby terminated.

D. That the minor shall be and is hereby placed in the Custody and Guardianship of Anthony J. Veronico, Guardianship Administrator, Department of Children and Family Services, his successor or successors in office, with authority to consent to adoption and all medical and dental care."

Turning first to the question of the validity of the order, we find it deficient in two respects: (1) the conferral of authority to adopt without a finding that such authority is in the best interests of the minor, and (2) the failure to find whether the neglect is the result of physical abuse inflicted by the parent as is required by section 4-8(2) of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 704-8(2)).

Section 5-9(2) of the Juvenile Court Act provides in part that "[i]f the petition prays and the court finds that it is in the best interests of the minor that a guardian of the person be appointed and authorized to consent to the adoption of the minor, the court * * * after finding a non-consenting parent to be unfit * * * may empower the guardian * * * in the order appointing him ...


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