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In Re Johnson

OPINION FILED JUNE 28, 1985.

IN RE STACIE JOHNSON ET AL., MINORS (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER,

v.

JOHNNIE M. JOHNSON, RESPONDENT-APPELLEE (SANDRA ADEN ET AL., ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLANTS)). — IN RE STACIE JOHNSON ET AL., MINORS (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE

v.

JOHNNIE M. JOHNSON, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Champaign County; the Hon. John R. DeLaMar, Judge, presiding.

JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

In cause No. 4-84-0255, the Johnsons' three daughters were adjudicated abused minors within the meaning of section 2-4 of the Juvenile Court Act (Act) (Ill. Rev. Stat. 1981, ch. 37, par. 702-4), and were placed in the custody of the Department of Children and Family Services (DCFS). An appeal was taken (In re Johnson (1983), 114 Ill. App.3d 1160 (Rule 23 order)), and this court affirmed in part, reversed the dispositional order as to the mother, and remanded the cause for further proceedings. The circuit court conducted further hearings and another appeal was taken by respondent, which was dismissed by this court as premature. (In re Johnson (Feb. 7, 1984), 4th Dist. Gen. No. 4-83-0753, dismissed.) Additional hearings were conducted, and, at the close of a review hearing on March 9, 1984, the court found the parents unable to care for the minors under section 5-7(1) of the Act. (Ill. Rev. Stat. 1983, ch. 37, par. 705-7(1).) The mother appeals.

Cause No. 4-84-0251 arose from the above case. On October 27, 1983, the circuit court ordered at least one extended visitation per month between the minors and their mother, and if any party resisted visitation it was to be brought to the court's attention. On February 2, 1984, the respondent-mother filed a petition for rule to show cause requesting that the court find Sandra Aden (DCFS caseworker), Judith Sattazahn (DCFS case review administrator), and Gary T. Morgan (DCFS guardian) in indirect civil contempt for failure to accomplish extended visitation or bringing the matter to the court's attention; and for attorney's fees in bringing the petition. After hearings, the circuit court held Aden and Morgan in indirect civil contempt for having scheduled no visitation for the month of January 1984, found Aden had purged herself by arranging February visitation, and that Morgan could purge himself by paying the mother's attorney fees of $450. The court entered a Rule 304(a) (87 Ill.2d R. 304(a)) finding, and this appeal followed.

The appeals were consolidated on the motion of the respondent-mother, and are referred to herein by case number.

We first consider petitioner's motion to dismiss the appeal in No. 4-84-0255 for lack of a final order. The motion and objection thereto were ordered taken with the case. In pronouncing the March 9, 1984, order, the trial court contemporaneously set a review hearing for June 26, 1984. At the June hearing, the case was set for review on August 23, 1984. The docket entry for the August hearing, attached to petitioner's motion and outside the record on appeal, shows the case set for further review on October 30, 1984. Petitioner contends that since the August 1984 order left the cause on appeal pending, the appeal must be dismissed for lack of a final order.

Respondent points out that in announcing the March 9, 1984, order, the trial court made a Rule 304(a) finding of no just reason to delay enforcement or an appeal. Such finding under Rule 304(a), however, has no effect whatever if the order to which it attaches is not in fact a final judgment as to one or more parties or claims. Reviewing courts have had to state this proposition repeatedly in dismissing appeals taken from non-final orders to which the finding was appended. At the same time, if a Rule 304(a) finding is made as to an order which is in fact final, the affected party loses the right to appeal by waiting until termination of the remainder of the case. (See Ill. Ann. Stat., ch. 110A, par. 304, Supplement to Historical and Practice Notes, at 396 (Smith-Hurd Supp. 1983), and cases cited therein.) In juvenile cases, an adjudication of wardship is generally not a final appealable order, but appeal lies from a dispositional order. In re Smith (1980), 80 Ill. App.3d 380, 399 N.E.2d 701; In re J.N. (1982), 91 Ill.2d 122, 435 N.E.2d 473.

• 1 We find that the court's March 9, 1984, order was a final, appealable order. The circuit court thereby made its dispositional ruling pursuant to this court's order on remand in No. 4-82-0657 and found reason to withhold custody from the natural mother under section 5-7(1) of the Act. The entry of a Rule 304(a) finding was indication of the judge's intent that the order be final. Even after an appeal is taken, circuit court jurisdiction in matters involving minors adjudicated abused and placed in the custody of DCFS is necessarily of a continuing nature. (See, e.g., Ill. Rev. Stat. 1983, ch. 37, pars. 705-8(1), 705-6, 705-4.) After considering the record, we conclude that the contemporaneous setting of a further review hearing was in the context of the court's inherent powers to call the case for review, rather than of a nature to deprive the March 1984 order of finality for purposes of review.

We recognize the convenience of setting a further review date in such cases while the parties are present before the court. We suggest as better practice, and less confusing to the parties and reviewing courts considering the finality of the judgment, that the judge make clear he is setting a review hearing in the exercise of his inherent powers and as a matter separate and apart from the order otherwise entered.

For the foregoing reasons, the motion to dismiss in No. 4-84-0255 is denied. Treatment of the issues raised requires an excursus into what has transpired to date in the cause from which the appeals were taken.

According to the evidence, Mr. Johnson began seeing the respondent-mother in 1975, married her in 1978, and initiated adoption proceedings for her four children (daughters born in 1968, 1969, and 1971, and a son born in 1973) in 1980, which were finalized in 1981. The cause began after the oldest daughter complained at school of physical abuse by the adoptive father. DCFS was called on the abuse report, which led to the filing on May 17, 1982, of a two-count petition in the Champaign circuit court. Count I alleged the three minor daughters of John and Johnnie Johnson were abused by Mr. Johnson's having committed sex offenses against them, in that he had intercourse with the two older daughters and fondled the youngest daughter. Count II alleged abuse in that the mother had allowed the sex offenses to be committed against the minors. A shelter-care order was entered. The guardianship administrator of DCFS was named temporary custodian with power to place pending adjudication, and the minors were placed in foster care.

At the June 30, 1982, adjudicatory hearing, the minors each testified that the acts of sexual abuse described in the complaint had been occurring since they were about seven years old. They had not told their mother of the incidents, which occurred only when she was out of the house. There was testimony that the two older daughters had been engaged since the summer of 1981 to clean on Saturdays at the apartment of a 52-year-old male friend of their adoptive father; evidence included checks written by the friend to the girls. According to the testimony, the man instead participated in sexual activities with the girls, joined several times a month by the adoptive father. Mrs. Johnson testified that she did house-cleaning three weekdays from 8:30 a.m. to 12:30 p.m. and was usually home when the children returned from school, but was out of the home during church choir rehearsal Monday nights from 7 p.m. until 9:15 p.m.

At the close of the State's evidence on the petition, the court made a finding in favor of the respondent mother on count II. At the conclusion of the evidence the court found the minors had been sexually abused by John Johnson and that Davis had engaged in sexual activity with the two older daughters with the knowledge of the adoptive father. The court further noted as distressing the fact that each of the larger checks written by Davis to the minors contained the purported endorsement of the respondent-mother. The court found her understanding of what the checks were for was incredible.

At the dispositional hearing on August 17, 1982, the court concluded that guardianship was essential, reaffirmed its finding of abuse as to count I, found the minors abused and made them wards of the court, and found it in the best interest of the minors and the public that the guardianship administrator of DCFS be appointed permanent guardian with power to place. The parents were ordered to establish and maintain regular visitation and cooperate with the guardian. The judge said he understood that since the adjudicatory hearing there had been reluctance by one or more of the children to attend visits, and he did not want to force visits but hoped ...


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