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09/30/88 In Re J.K.F. Et Al.

September 30, 1988

IN RE J.K.F. ET AL., MINORS (THE PEOPLE OF THE STATE OF


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Illinois, Petitioner-Appellee, v.

Deborah Fontenot, Respondent-Appellant)

529 N.E.2d 92, 174 Ill. App. 3d 732, 124 Ill. Dec. 375 1988.IL.1498

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

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

On November 23, 1987, the circuit court of Champaign County awarded custody of 13-year-old J.K.F. to the boy's former stepfather, Chester Fontenot. Previously, the court found that while living with their respondent mother Deborah Fontenot, J.K.F. and his sister J.C.F. were abused minors as defined by the Juvenile Court Act (Act) (Ill. Rev. Stat. 1985, ch. 37, pars. 702-4(2)(a)(i), (2)(b)). Deborah appeals the custody order alleging the trial court erred in placing the custody of J.K.F. with Chester. We affirm.

On January 5, 1987, the trial court found that J.K.F and J.C.F. were abused minors. (Ill. Rev. Stat. 1985, ch. 37, pars. 702-4(2)(a)(i), (2)(b).) The court found the children had been inappropriately beaten and disciplined by their angry mother. At a Dispositional hearing held on October 20, 1986, the court ordered J.C.F. placed in the care and custody of her natural father, Chester, and J.K.F. placed with the Department of Children and Family Services . This court affirmed the order of the trial court regarding the finding of abuse. In re J.K.F. (4th Dist. 1987), No. 4-87-0241 (order under Supreme Court Rule 23).

After several Dispositional hearings held to review the parties' situation, on November 23, 1987, the trial court found Deborah remained unable, for reasons other than financial circumstances alone, to care for, protect, train, and discipline J.K.F. (See Ill. Rev. Stat., 1986 Supp., ch. 37, par. 705-7(1).) The court opined it was in the best interests of J.K.F. that he be placed in the custody of Chester. Guardianship of the child was to remain with DCFS until further order.

Chester is not the biological father of J.K.F. The whereabouts of the boy's natural father is unknown. Deborah argues it is not in the best interests of J.K.F. that he be placed in the custody of a man who is unrelated, rather than his natural mother.

It is undisputed a natural parent has a superior right to the custody of his child. However, that right is not absolute and must yield to the best interests of the child. (Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, 158 N.E.2d 613.) Section 1-2(3)(c) provides: "The parents' right to the custody of their child shall not prevail when the court determines that it is contrary to the best interests of the child." (Ill. Rev. Stat. 1985, ch. 37, par. 701-2(3)(c).) Unlike in an adoption scenario, the best interests of the child is the standard in a custody case under the Juvenile Court Act and the trial court has wide discretion. (In re Powers (1981), 94 Ill. App. 3d 646, 418 N.E.2d 1145.) Section 5-7(1)(a) of the Act gives the court authority to place a child in the custody of a "suitable other person" if the court finds the parents "are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor . . . and that it is in the best interest of the minor to take him from the custody of his parents." (Ill. Rev. Stat., 1986 Supp., ch. 37, par. 705-7(1)(a).) If the "best interests" standard can be attained only by placing the child in the custody of someone other than the natural parent, it is unnecessary for the court to find the natural parent unfit to care for the child. (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417.) In Giacopelli, the supreme court held: "Fitness of the parent is only one of the factors to be considered in determining how the best interest of the child may be served . . . all other matters that have a bearing upon the welfare of the child are to be considered." Giacopelli, 16 Ill. 2d at 565, 158 N.E.2d at 618.

Custody rights of parents are determined on a case-by-case basis. Our supreme court in In re Stilley (1977), 66 Ill. 2d 515, 520, 363 N.E.2d 820, 822, observed that in a case as delicate as a child custody or neglect case, the trial court's opportunity to observe the demeanor and conduct of parties and witnesses must be given great weight. Thus the determination of the trial court in these cases will not be disturbed unless it is palpably against the manifest weight of the evidence. Stilley, 66 Ill. 2d 515, 363 N.E.2d 820; Powers, 94 Ill. App. 3d 646, 418 N.E.2d 1145.

The record reflects the trial court has once declared J.K.F. an abused minor and placed him in the custody of DCFS. (Ill. Rev. Stat. 1985, ch. 37, pars. 702-4, 705-7.) The Act requires that a hearing be held on the issue of the "fitness" of the abusive parent before the custody of the child is restored to that parent. (Ill. Rev. Stat., 1986 Supp., ch. 37, pars. 705-2(1)(d), 705-8(3), (4).) Our review of the evidence leads us to the Conclusion the trial court's decision to place J.K.F. in the ...


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