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In Re Johnson

OPINION FILED DECEMBER 28, 1981.

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

v.

MARVIN BELTON, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR N. HAMILTON, Judge, presiding.

JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Appellant, the father of Marvin Johnson (the minor), appealed orders of the trial court finding his son neglected, adjudging him a ward of the court, finding appellant unfit and appointing Richard S. Laymon guardian with right to place. Subsequent to the filing of appellant's appeal from those orders, the trial court entered another order finding the mother fit and returning the minor to her. Appellant also filed an appeal from this order. These two cases have been consolidated for purposes of this appeal.

The issues raised in these appeals are: (1) whether the trial court erred in accepting an admission from appellant at the adjudicatory hearing without first appointing independent counsel to represent him; (2) whether the trial court erred in refusing to grant appellant's motion to withdraw his stipulation of facts and admission; (3) whether the trial court erred in refusing to grant appellant's motion for a new trial; and (4) whether the trial court had jurisdiction to enter its order finding the mother fit and placing the minor with his mother.

A neglect petition was filed on behalf of the minor. The petition alleged in pertinent part that the minor was born September 9, 1977, that he had numerous first degree burns over his buttocks, penis, scrotum and legs, which according to medical opinion were consistent with burns inflicted with cigarettes; that on or about May 31, 1978, the minor's mother stated that appellant, Marvin Belton, also known as Marvin Jones, inflicted the burns on the minor; that on or about May 31, 1978, a relative of the minor alleged that the mother had caused the injuries; that on or about May 31, 1978, a neighbor of the mother alleged that she had witnessed the mother inflicting the injuries on the minor; that on or about March 31, 1978, the minor was treated for a fracture of the left humerus; and that the minor had been injured on that date when the mother and Marvin Belton fought over him. The petition requested that Richard S. Laymon be appointed temporary custodian of the minor; that the temporary custodian be ordered not to return him to the custody of his mother, and that he be adjudged a ward of the court, and for other relief appropriate under the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701-1 et seq.).

On June 2, 1978, a temporary custody hearing was held at which a guardian ad litem was appointed for the minor. The guardian ad litem was also appointed to serve as counsel for the minor. The Cook County Public Defender was appointed as counsel for the mother and was also appointed as her guardian ad litem because she was 15 years of age. The mother testified that the father of the minor was Marvin Lee Burton. The petition was amended to show Marvin Burton *fn1 as the father of the child. Temporary custody of the minor was given to Richard S. Laymon and a social investigation was ordered. The case was continued to June 23, 1978.

On June 23, 1978, the appellant appeared without counsel at the hearing. The minor's mother stated that he was the father of the minor. The appellant also acknowledged that he was the father of the child. In response to questioning by the court, the appellant stated he was unable to afford a lawyer and that he wanted a public defender appointed to represent him. After a brief recess during which time appellant conversed with the assistant public defender, the latter told the court that he believed that "there is going to be a conflict." Appellant was then referred to Chicago Volunteer Legal Services. After the court requested the State have appellant sign an appearance and waiver of service, the case was continued.

On July 7, 1978, appellant appeared before the court and advised it that Chicago Volunteer Legal Services would not accept the case. The court inquired of the assistant public defender whether a conflict existed between the mother and appellant to which the assistant public defender affirmatively responded. The court then referred appellant to a private attorney.

On August 1, 1978, the Assistant State's Attorney told the court that the parents of the child were prepared to make an admission based on a stipulation of facts as alleged in the petition. The assistant public defender reminded the court that he only represented the mother; that private counsel had been appointed for appellant, and therefore, he could not speak in appellant's behalf. The court stated to appellant that it understood that he had failed to keep his appointment with the private attorney appointed to represent him. Appellant responded that he had missed the appointment because of illness, and although unsuccessful in his efforts, had tried to reschedule it. The court asked appellant if it was true as indicated by the Assistant State's Attorney that he wished to enter an admission in the case and that he agreed to the appointment of a guardian for his son. Appellant responded affirmatively. The court then inquired of appellant if he understood that although Richard S. Laymon would be appointed the child's guardian, placement would be with the child's maternal aunt. Appellant responded that he undertood that and agreed to it. The assistant public defender stated that at the time the hearing was first set there was a conflict, but perhaps if there now was no conflict, he could also be appointed to represent appellant. The court appointed the assistant public defender to represent the father. The court then accepted the admission of both parents. The assistant public defender stipulated to the facts as alleged in the petition. The court made a finding of neglect based upon the stipulation pursuant to section 2-4(1)(b) of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 702-4(1)(b)) and allowed the temporary custody order to stand, while referring the parents to clinical services for evaluation. The court also made a finding of best interests and an adjudication of wardship.

On November 6, 1978, the Assistant State's Attorney advised the court that the clinical services report had been completed, and that the State was seeking appointment of a guardian, with continued placement with a maternal aunt. The assistant public defender stated that neither the mother nor the father desired that a guardian be appointed for the minor and that they could not agree on any other suitable disposition. The assistant public defender requested leave to withdraw as attorney for the mother but to continue as counsel for appellant. The court, however, referred appellant to the presiding judge for appointment of counsel. Subsequently, an attorney was appointed to represent appellant.

On March 5, 1979, appellant's attorney filed a motion to withdraw appellant's stipulation of facts and admission and to request the court to vacate its finding of neglect. The court denied appellant's motion and continued the disposition hearing to April 19, 1979.

On April 19, 1979, appellant's counsel and the mother's counsel joined in a motion for a new trial claiming that appellant had been denied effective representation at the August 1, 1978, hearing. The court denied the motion and proceeded to hear evidence at the dispositional phase of the neglect proceedings. Doris Bowie, a social worker for the Illinois Department of Children and Family Services, who had been assigned to the case of the minor since December 1978, testified on behalf of the State. She stated that in her opinion Richard S. Laymon should be appointed guardian of the minor with the right to place the child, the intended placement to be in the home of the maternal aunt. She based her opinion on her interviews with each parent and the case studies conducted by a psychiatrist with the Department of Clinical Services and a psychologist from Ebony Management. The Clinical Services report concluded that neither parent was capable of functioning as a responsible parent. The Ebony Management report concluded that the mother was not sufficiently mature to adequately care for the minor. Bowie stated that she thought it correct to say that each parent had accused the other of causing the problems.

Appellant testified that the minor was his son and that it was his desire that he be placed in his custody so that he could care for him. He stated that it was his intention to support him to the best of his ability.

The mother testified that she was a 10th-grade student at Hyde Park Career Academy. It was her desire that the minor be returned to her. She testified that she did not abuse the child in any way. If the child was returned to her, she planned to support him through public aid.

After hearing all of the evidence, the court entered a finding of unfitness and best interest, vacated the temporary custody order, and appointed Richard S. Laymon as guardian with the right to place the minor. The court informed the parents that they still remained the minor's parents with the right and duty to correct the conditions that necessitated the appointment of a guardian. At the conclusion of ...


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