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01/23/87 In Re E.L.

January 23, 1987

IN RE E.L., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS,


Before reaching the merits of this case, we first consider whether this court is without jurisdiction to hear this appeal. Petitioner argues that because there was no order of wardship or Disposition rendered below, there can be no final judgment from which an appeal can be taken. We disagree.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

Petitioner-Appellee, v.

W.L. et al., Respondents-Appellants)

504 N.E.2d 157, 152 Ill. App. 3d 25, 105 Ill. Dec. 288 1987.IL.45

Appeal from the Circuit Court of Cook County; the Hon. Nello Gamberdino, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

We affirm.

On December 29, 1982, the State filed a petition for adjudication of wardship on behalf of E.L., a six-year-old minor. The petition charged the minor's parents, respondents in this case, with abuse of their daughter on the basis that they had committed or allowed to commit a sex offense and had subjected her to an environment detrimental to her welfare in violation of section 2-4 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, pars. 702-4(2)(a)(iii), 702-4(2)(b)).

Shortly after the State filed its petition for adjudication of wardship, respondents were indicted with creating child pornography. The indictment criminally charged both parents with (1) taking nude photographs of their six-year-old daughter in poses that exposed her genital area in a lewd manner, and (2) knowingly permitting said photographs of their child to be taken. Following a bench trial, respondent father, W.L., was found guilty of creating child pornography and was subsequently sentenced to one-year conditional discharge. Respondent mother, M.L., was acquitted of both charges. The appellate court affirmed W.L.'s conviction finding the photographs patently offensive in that they depicted the child's genitals in a lewd fashion and were suggestive of sexual activity.

The petition for adjudication of wardship was still pending in juvenile court at the time the criminal charges against respondents were resolved. Pursuant to those proceedings, a discovery deposition of the mother, M.L., was taken. In the deposition respondent mother testified that she had been present at the time the photographs in question were taken, that she knew there was film in the camera, and that she had not found it morally objectionable for her husband to have taken these photographs of their daughter.

The State subsequently moved the court for summary judgment on the issue of abuse. Attached to the State's motion were the following supporting documents: a certified copy of the father W.L.'s conviction for creating child pornography, the affidavit of the assistant State's Attorney involved in the prosecution of respondents on criminal charges, and excerpts of the mother's, M.L.'s, discovery deposition taken pursuant to the civil proceedings. The affidavit of the assistant State's Attorney was offered merely to establish that the photographs referred to by M.L. during her deposition testimony were the same as those forming the basis of her husband's conviction. Respondents filed a reply to the summary judgment motion arguing that their counsel's incompetency during the criminal proceedings had denied them the opportunity to litigate the issue of pornography and that they should not be afforded the opportunity to do the same. Attached to their reply were the discovery deposition of Sandra Row, a social worker involved in the case for over two years, and the affidavit of child psychiatrist, Dr. Henry Gault. Both of these witnesses testified that the photographs taken of E.L. by her father were neither obscene nor pornographic. Following a hearing on the motion, the trial Judge concluded that E.L. had been the victim of sexual abuse and that the resulting home environment had been injurious to her welfare. As basis for its factual findings the court cited W.L.'s criminal conviction of creating child pornography and M.L.'s discovery deposition. The findings, however, were limited only to the time the photographs were taken and, as such, had no bearing on what had transpired in the home since the incident took place.

On February 27, 1985, a Dispositional hearing was held on the petition for adjudication of wardship. At that time, the court heard the testimony of Sandra Row. Ms. Row stated that E.L. had remained in respondents' home since February 14, 1983, during which time no further incidents of abuse had been reported and she had not been subjected to an unfavorable home environment. The State maintained that E.L.'s interests would best be served by making her a ward of the court and by entering an order of supervision for the duration of one year. Respondents' motion for a directed finding, however, was ...


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