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12/30/88 In Re P.W.

December 30, 1988

IN RE P.W., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

Petitioner-Appellee, v.

P.W., Respondent-Appellee (Sadie W., Respondent-Appellant))

533 N.E.2d 922, 178 Ill. App. 3d 522, 127 Ill. Dec. 840 1988.IL.1923

Appeal from the Circuit Court of Cook County; the Hon. Peter F. Costa, Judge, presiding.

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

On July 15, 1986, the circuit court of Cook County, Juvenile Division, declared P.W., a minor girl, to be a neglected child under the Juvenile Court Act, and P.W. became a ward of the court. (See Ill. Rev. Stat. 1985, ch. 37, par. 701-1 et seq.) In May 1987, P.W.'s father, John Wayne W., filed a petition seeking custody of P.W. After a hearing on the petition, at which counsel for all interested parties, as well as the parties themselves, were present, the circuit court of Cook County granted the petition of P.W.'s father and awarded him custody of P.W. under an order of protective supervision for six months. *fn1 P.W.'s mother, Sadie W., appeals the entry of that order, contending that the trial court lacked jurisdiction over the minor, P.W., and that the trial court denied her the opportunity to present her case when it refused to grant her a continuance. The State and P.W., through her guardian ad litem, have responded to her appeal. We affirm for the reasons set forth below.

The facts underlying the appeal are as follows. On April 29, 1985, the Illinois State's Attorney filed a petition for adjudication of wardship for P.W., a minor, in the circuit court of Cook County. On July 15, 1986, the court adJudged P.W. to be a neglected child, placed P.W. in the care of the Department of Children and Family Services , and appointed a guardian ad litem to represent P.W. in all court-related proceedings.

Thereafter, on May 29, 1987, P.W.'s father filed a petition seeking custody of P.W. and, at the same time, he requested a hearing on the petition. Notice of the motion and the petition was sent to P.W.'s guardian ad litem ; the DCFS, as P.W.'s guardian; counsel for P.W.'s mother, the public defender; and the Cook County State's Attorney. It appears from the record that all of these parties were served by mail, but there is no indication that the minor child, P.W., was individually served.

On July 9, 1987, the date set for the hearing on the petition, counsel for the State of Illinois, counsel for P.W., counsel for the father, and counsel for the mother were all present. Also present were P.W., the mother, and the father. At that time, counsel for the mother, an assistant public defender, requested a continuance of the hearing because she asserted that the mother had had no notice of the hearing, that the public defender's office did not have a copy of the petition in its file, that the assistant public defender who had appeared previously apparently did not recall receiving a copy of the petition, and that the assistant public defender who was familiar with the case and who had previously appeared could not be present at the hearing. However, the trial court found that counsel for the mother had been present at the last court date on June 1, 1987, when counsel for all interested parties had discussed the petition and the hearing date, and further found that because counsel for the mother was present on the prior date, the mother had notice of the hearing. Additionally, the trial court found that the public defender's office was properly served with a copy of the petition by mail. Consequently, the trial Judge concluded that service on the mother was proper and denied her motion for a continuance. There was no objection at that time that the minor had not been properly served with notice.

After these preliminary matters were considered, the court proceeded to a hearing on the merits of the petition. At the hearing, the father presented the testimony of himself, P.W., Louise W., his present wife, Linda Willis, a DCFS worker assigned to P.W.'s case, and Brenton Diers, a social worker and P.W.'s therapist at the children's center where P.W. had been living for the past 16 months. All of the parties' attorneys were given the opportunity to cross-examine each of the witnesses. In his testimony, the father contended that he had never hit the children, and that although he had hit the mother, that only had occurred when they had been fighting. Additionally, his testimony established that he had remarried and taken steps to turn his life in the right direction. Both he and his new wife held full-time jobs and had arranged their work schedules to accommodate for the care of the minor, P.W., and her brother Jonathan, *fn2 and the father testified that he was also taking classes designed to aid him in becoming a better parent. The testimony at the hearing indicated that the court's prior custody determination which placed P.W.'s brother, Jonathan, in the custody of the father and his present wife was working out very well. In chambers and in the presence of counsel, P.W. testified that although she enjoyed seeing her mother, there were certain incidents, such as her mother's emotional outbursts, verified by other witnesses, that occurred during visits with her mother that upset and embarrassed her. She told the court that she wanted to live with her father. Further testimony established that P.W.'s visits with her mother were most beneficial when supervised because of the potentially harmful effect of her visits upon P.W.

After the father presented these witnesses, the mother testified and stated that the father had hit the children on various occasions. She also offered the written report of a clinical psychologist, Dr. Noll, who had evaluated the mother and concluded in her report that P.W. should eventually be returned to her mother's care. After the report was presented, the court allowed it to be admitted for whatever weight it might have. Thereafter, counsel for the mother again requested a continuance so that he could present the testimony of Ruth Gibson, a person the mother claimed could testify that she saw marks on the children approximately two years prior to the hearing date, allegedly due to the father's abuse.

The court denied that motion and then allowed counsel for each of the parties an opportunity to make closing remarks. Counsel for the State, counsel for P.W. and counsel for the father all agreed that custody of P.W. should be awarded to her father and his present wife. Counsel for the mother argued that the mother wanted P.W. to remain at the children's center until she could obtain custody of P.W. herself. Following the arguments, the court ruled that it was in P.W.'s best interest that she be placed in the custody ...


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