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03/01/88 In Re T.W. Et Al. (the People of the State of Illinois

March 1, 1988

IN RE T.W. ET AL. (THE PEOPLE OF THE STATE OF ILLINOIS,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Petitioner-Appellee, v.

Kennice Holder, Respondent-Appellant)

520 N.E.2d 1107, 166 Ill. App. 3d 1022, 117 Ill. Dec. 756 1988.IL.270

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

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

The defendant, Kennice Holder, appeals the order of the circuit court of Champaign County holding him in contempt of court for violation of an order of protection. The defendant maintains the court was without jurisdiction to enter the protective order against him. The defendant relies upon our Disposition in In re S.A.C. (1986), 147 Ill. App. 3d 656, 498 N.E.2d 285, in support of this contention. We, however, find S.A.C. factually distinguishable from the situation herein, and consequently affirm the trial court's order.

On July 21, 1986, the court entered an adjudicatory order declaring the minors T.W. and S.W. abused. The minors were subsequently declared wards of the court and custody was removed from their mother, Marion Ward. At the time of the hearings, Ward was living with the defendant. The defendant was not, however, present, nor was his presence requested at the hearings.

On July 31, 1986, the State filed a petition seeking an order of protection against the defendant. At the time this petition was filed, no Dispositional hearing had been held with respect to the original petition and adjudication. The petition, together with summons to appear at the hearing, was mailed to the defendant. On September 15, 1986, the defendant appeared. The court explained to the defendant the purpose of the hearing, and following hearing on the matter, the court, pursuant to section 5-5 of the Juvenile Court Act (Act) (Ill. Rev. Stat. 1985, ch. 37, par. 705-5), entered the order of protection against the defendant. The defendant was specifically ordered to have no contact with T.W., S.W., or Eugene and Pauline Boatright. The court noted that the defendant has no legal relationship by blood, marriage, adoption, or otherwise to the minors, T.W. and S.W., and thus, had no right to have contact with them. The defendant informed the court he understood the order.

On January 14, 1987, the State filed a petition for rule to show cause alleging that the defendant had wilfully violated the order of protection. On February 9, 1987, a hearing was held on the matter. The defendant was informed of his right to counsel and the case was continued so that the defendant might retain an attorney. On March 24, 1987, the case was called and the defendant informed the court he was still without counsel and desired representation. The court appointed the public defender and again continued the matter.

On April 24, 1987, the hearing on the rule to show cause commenced. The defense attorney moved to dismiss the case alleging lack of jurisdiction because the defendant was not a party to the original juvenile petition and had not been served with summons in that matter. The court, however, denied the defendant's motion to dismiss. The court specifically noted that the defendant was served, was present when the protection order was entered, and was afforded a meaningful opportunity to be heard. As such, the court had sufficient jurisdiction over the defendant to enter the protective order.

The court then proceeded to hear evidence regarding the alleged violation of the order. The court found the defendant in violation and the cause was continued for sentencing. On May 29, 1987, the defendant was sentenced to a term of 12 months' conditional discharge with a 45-day jail term.

A petition for protective order is appropriate to be heard at the Dispositional stage of the proceedings. Article V of the Juvenile Court Act concerns Dispositions and section 5-5 provides for orders of protection. The petition was properly before the trial court even absent a Dispositional order on the original petition. Under section 5-5 of the Act, a court may enter "an order of protection in assistance of or as a condition of any other order authorized by this Act." (Ill. Rev. Stat. 1985, ch. 37, par. 705-5(1).) Such an order may be entered against "any person who is before the court on the original or supplemental petition." (Ill. Rev. Stat. 1985, ch. 37, par. 705-5(1).) The Act, under section 4-1, further requires that where an order of protection is sought against an individual, the petition "shall name that person as a respondent and give the ...


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