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12/29/89 In Re James J. Et Al.

December 29, 1989

IN RE JAMES J. ET AL., MINORS (JAMES J. ET AL., MINORS, BY


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

their Guardian ad litem, Respondents-Appellants, v.

The People of the State of Illinois, Petitioner-Appellee

(Karen J. Taylor et al., Respondents-Appellees))

549 N.E.2d 834, 193 Ill. App. 3d 75, 140 Ill. Dec. 183 1989.IL.2064

Appeal from the Circuit Court of Cook County; the Hon. Gerald Winiecki, Judge, presiding.

APPELLATE Judges:

JUSTICE HARTMAN delivered the opinion of the court. BILANDIC, P.J., concurs. JUSTICE DiVITO, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Upon motion of the State's Attorney, petitions for adjudication of wardship filed on behalf of three minors were dismissed. The public guardian, as the minors' attorney and guardian ad litem, appeals that dismissal. The issues presented for review are whether (1) this appeal should be dismissed due to the public guardian's failure to proceed under Illinois Supreme Court Rule 306(a)(1)(v) (107 Ill. 2d R. 306(a)(1)(v)); and (2) the circuit court erred in dismissing the petitions to adjudicate wardship on the ground that it did not have the authority to require the State to prosecute the petitions.

On September 9, 1988, the Illinois Department of Children and Family Services registered three petitions for adjudication of wardship for James J., Shawn J., and Jasmine J.1 in the circuit court. Each petition was based on section 2-3(2)(a)(ii) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 802-3(2)(a)(ii)) (Act).

At the initial hearing on September 28, 1988, in the circuit court, the office of the public guardian was appointed as attorney and guardian ad litem for the three minors. The public defender also was then appointed as attorney for the parents of the minors. The prosecutor, an assistant Cook County State's Attorney, subsequently moved to dismiss the petitions, based upon his previous Discussion of the case with the DCFS and Department of Child Protection personnel. According to the State's Attorney, the Conclusion reached by him and the case workers was that "this was apparently a one time incident in which the injury to one of the children was accidentally [ sic ] as a result of a family dispute" and unlikely to recur. The public guardian, however, objected to the motion to dismiss, suggested it was in the best interest of the minors to proceed on the petition, and urged that the court had the authority to order the State's Attorney to prosecute the petitions for adjudication of wardship.

Pursuant to the State's motion, the court dismissed the petitions without prejudice, reasoning that such a ruling was required under both the "separation of powers provision of the Constitution" and the Juvenile Court Act of 1987, which gave the State's Attorney exclusive authority to prosecute these cases. The court concluded that while it was permitted to direct the State's Attorney to file a petition, it was "without legal authority or precedent to require the State to proceed with the prosecution of this case."

From the dismissal without prejudice of the three petitions to adjudicate wardship, the minors, through the public guardian, appeal. I

The public defender argues that this appeal should be dismissed, relying on Illinois Supreme Court Rule 306(a)(1)(v) (107 Ill. 2d R. 306(a)(1)(v)). Characterizing the dismissal without prejudice entered here as a non-final interlocutory order affecting the care and custody of minors, the public defender urges that the appeal be ...


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