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In Re Gray

OPINION FILED MARCH 12, 1985.

IN RE BRENDA GRAY, A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

MARY CRAIG, RESPONDENT-APPELLANT; DENNIS GRAY ET AL., RESPONDENTS).



Appeal from the Circuit Court of Livingston County; the Hon. Charles E. Glennon, Judge, presiding. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Four juvenile petitions.

All found wards of the court.

We affirm.

Following adjudicatory and dispositional hearings on four juvenile petitions, it was found that three of Mary Craig's children were neglected and that one was neglected and abused. She appeals, alleging that the adjudications of neglect concerning her three children were against the manifest weight of the evidence and that the trial court lacked subject-matter jurisdiction over the child who was adjudicated abused and neglected.

We agree with the trial court.

I. THE FACTS

The factual and procedural background is lengthy and cumbersome.

On January 19, 1984, the Livingston County State's Attorney's office commenced circuit court case 84J3 by filing a petition seeking to have a minor, Brenda Gray, adjudicated a ward of the court upon the averment that the minor was neglected as defined by section 2-4 of the Juvenile Court Act. (Ill. Rev. Stat. 1983, ch. 37, par. 702-4.) The factual underpinning for the petition was that Mary Craig, Brenda's mother, had failed to protect the minor from instances of physical abuse on the part of the minor's stepfather, Steven Craig, and also that she had failed to protect the minor from instances of sexual abuse occurring in the home.

A hearing was held on January 19, 1984, but prior to the hearing's commencement, the trial court appointed counsel for Mary Craig. At the hearing, counsel raised the issue of lack of subject-matter jurisdiction in a motion which requested that the court set aside and vacate all previous orders entered in the case and to dismiss the cause in its entirety. The motion was taken under advisement, and the hearing proceeded. The trial court entered an order of protection precluding any contact between Brenda and her mother or stepfather. The court was advised that the minor had been removed from Illinois by her natural father, Dennis Gray, and the court permitted the natural father to retain physical custody of the minor.

The court then ordered an adjudicatory hearing to be set for February 29, 1984, and directed notice to be sent to the parties. Summonses to Dennis and Brenda were mailed on January 20, 1984, and return of service was had on January 27, 1984.

On January 26, 1984, Mary filed a motion to dismiss cause 84J3 for lack of subject-matter jurisdiction under the Juvenile Court Act. The trial court held that since the minor was in Indiana with her natural father and the Juvenile Court Act provided "no method whereby the court can acquire jurisdiction over said child, that the juvenile proceeding was dismissed without prejudice." The order went on to note that the fact that the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1983, ch. 40, par. 2101 et seq.) placed the child's residence with her custodial parent did not vest jurisdiction in the court under the terms of the Juvenile Court Act. The order, however, left the earlier order of protection in effect, indicating as a jurisdictional basis the Illinois Domestic Violence Act (Ill. Rev. Stat. 1983, ch. 40, par. 2301-1 et seq.), even though no petition raising matters pertinent to that Act is found in this record.

On February 17, 1984, Mary Craig and her attorney, a guardian ad litem for the children, appellant's ex-husband (Steven R. Craig) and his court-appointed counsel, Brenda Gray, her natural father, and an assistant State's Attorney all appeared in Livingston County circuit court. The appearances were pursuant to petitions filed on behalf of Mary and Steven Craig's three minor children. The court was informed that Dennis Gray had brought his daughter, Brenda, to the court pursuant to subpoenas which had previously been issued in case 84J3, and, further, that he had not been informed that the cause had been dismissed three days prior to his appearance. During the course of preliminary conversations with the court, Dennis Gray indicated he resided in the State of Indiana and that he had taken Brenda back to Indiana "about 32 days" prior to the instant hearing.

Apparently based on the fact that the minor child was now before the court, the trial court permitted the assistant State's Attorney to amend the previously filed and dismissed petition on its face. That amendment removed the allegation that the minor resided or may be found in French Lick, Indiana, and averred instead that the minor may be found in French Lick, Indiana, but that her residence was in Livingston County, Illinois. The cause was reinstated and the petition amended over objection of Mary Craig's counsel, who argued that the court lacked jurisdiction under the Juvenile Court Act because the minor had in fact been lured into the State in an effort to attach jurisdiction. Counsel also argued that the amendment was improper because it was not verified, whereas the original petition had been.

A hearing was then held upon the question of continuing or vacating the previous order of protection. The assistant State's Attorney called Mary Craig as an adverse witness. Her testimony was that in several instances her ex-husband, Steven R. Craig, had physically abused his stepdaughter, Brenda Gray. The most recent instance of abuse had occurred on November 21, 1983. She also testified that on several occasions she had physically interceded between Steven Craig and her daughter in attempts to protect the child, but that the attempts ...


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