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February 7, 1994


Appeal from the Circuit Court of Montgomery County. No. 92-D-34. Honorable John P. Coady, Judge Presiding.

Welch, Chapman, Maag

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

Delena Haslett appeals from an order of the circuit court of Montgomery County ostensibly awarding custody of her son, David Haslett, Jr., to the child's father, David Haslett, but ordering that the father execute legal documents effectively giving custody of the child to Richard and Connie Haslett, the father's brother and sister-in-law.

On November 18, 1989, David and Delena Haslett were married in Fillmore, Illinois. On February 21, 1991, Delena gave birth to David Haslett, Jr. ("DJ"). On March 10, 1992, David Haslett ("father") filed in the circuit court of Montgomery County a pro se petition for dissolution of marriage against Delena Haslett ("mother"). In his petition, the father requested that "temporary legal guardianship be given to Richard and Connie Haslett while the plaintiff begins back to work." On April 20, 1992, the mother filed her answer and a counterpetition for dissolution of marriage, asking for sole custody of DJ. On April 21, 1992, the mother filed a petition for temporary custody.

A hearing was held in the circuit court of Montgomery County on May 4, 1992. The father represented himself, and the mother was represented by an attorney from the Land of Lincoln Legal Assistance Foundation. After disposing of all the issues relating to property, debts, and maintenance, the court then heard testimony on the two remaining issues of custody and child support. The father testified first and stated that he: (1) was an elephant handler with the Great American Circus; (2) would be returning to work within the next day or two; (3) worked nine months (March through November) a year, during which time he travelled all over the country; (4) would not be returning to Illinois at any time during those nine months; (5) would only be in Illinois three months (December through February) a year; (6) wanted to leave DJ with his brother and sister-in-law for the nine months that he would be working out of State; (7) had a four-year-old daughter with another woman; (8) had never met this daughter nor paid any child support for her; (9) had been convicted of operating a motor vehicle without insurance; and (10) had spent some time in jail during the marriage on charges that were later dismissed.

The father also testified that: (1) during the time he and the mother lived together, the mother did not properly feed, bathe, or keep clean clothes on DJ; (2) because he was at work most of the time (eight to 12 hours a day), his statements concerning the mother's allegedly improper care of DJ were based, not upon firsthand knowledge, but rather upon his observations that just about every time he came home from work, DJ would be "screaming [his] heart out and hungry," and that DJ had dry skin and was "real cranky"; (3) whenever DJ cried, the mother would get real upset and "start yelling at it to shut up and throwing it down in its bed"; (4) DJ was taken to the hospital around October 15, 1991, to find out why he was not gaining weight; (5) in early November of 1991, he took the mother to Springfield, Illinois, and left her there without transportation; and (6) he and DJ had lived with the uncle and aunt since November of 1991.

The next witness to testify was Shelly Angle, a family care worker with Catholic Charities. She testified, inter alia, that: (1) the uncle and aunt were providing proper care for DJ and (2) she could not weigh one parent against the other. The uncle then testified that: (1) he had seen the mother slap DJ around, "simply ignore him when he was crying," and not feed him; (2) the mother had left DJ alone in the trailer more times than he could count; (3) he had gotten out of jail on March 7, 1992, after serving time on a conviction for driving on a revoked license; (4) he had two DUI convictions; (5) he attended Alcoholics Anonymous meetings every week and has been sober for over a year and a half; and (6) the father and mother lived in a "very dirty" trailer (e.g., dirty diapers on the floor, dirty dishes on the table, dirty clothes laying all over, and trash laying all over the floor), but that he could not "put the blame on either because they was [sic] both living there."

The aunt then testified that: (1) DJ was born premature on February 21, 1991, and that, as a result, he stayed in the hospital for three months; (2) she and her husband wanted to eventually get custody of DJ; (3) the mother loved DJ but was not feeding him properly; (4) at times DJ would go unfed; (5) the mother would not bathe DJ; (6) DJ would wear the same clothes for days; and (7) the mother did good by taking DJ to the doctor when he was sick.

Lastly, the mother testified that: (1) when DJ was seven months old, the father "smacked" him because he would not stop crying; (2) the father would yell at DJ to stop crying; (3) about a month before she and the father separated, the father threw a bowl at her, which missed and hit her niece; (4) on that same day, the father hit her with his fist and put his hands around her throat; (5) on other occasions, the father had raised his hand in a threatening manner; (6) the father said he would "grab and drop him" if she tried to leave with DJ; (7) due to DJ's small size, he needed to eat every two to four hours; (8) the father "once in a great blue moon" would help feed DJ, clean the house, or cook; (9) after the aunt had shown her how to bathe DJ, she had given him a bath every day; (10) she had never left DJ unattended; (11) she had never slapped DJ nor thrown him down into his bed; (12) she loved DJ; (13) when the trailer got dirty, she would let the aunt baby-sit so that she could clean up; (14) in November of 1991, the father had left her in Springfield with no transportation; (15) she spent approximately two months in the hospital (November-December 1991) being treated for postpartum depression; (16) after getting out of the hospital, she had made attempts to see DJ, but the father refused to bring DJ to Springfield or otherwise help her see DJ; (17) unable to see DJ, she called the father and wrote letters inquiring about DJ; (18) she was looking for a job but might go on public aid until she found one; and (19) she would be willing to cooperate with Catholic Charities and the Department of Children and Family Services ("DCFS") if she were awarded custody.

After hearing this evidence, the court awarded temporary physical custody of DJ to the aunt and uncle even though they were not parties, had not intervened, and had not filed any petition. The court stated it wanted a home study of the mother, the father, and the aunt and uncle. The court also wanted to hear from a DCFS investigator who might know about the case. Although the mother argued that the aunt and uncle had no standing to be awarded custody, the court refused to rule on the issue of standing. The court stated: "If I have the power, this child's staying with Connie[;] * * * whatever it takes for me to get the child to Connie, I've got to do * * *." Lastly, the court set a status hearing for July 6, 1992.

Because the home study was not complete, the July 6, 1992, status hearing was very brief. On July 13, 1992, an attorney hired by the aunt and uncle entered an appearance on their behalf but filed no pleading of any sort. On September 8, 1992, the mother filed a motion to dismiss the aunt and uncle's entry of appearance. In her motion, the mother argued that the aunt and uncle should not be allowed to participate in the case because they had not sought leave to intervene pursuant to section 601(c) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/601(c) (West 1992)) (Dissolution Act) nor had they filed a petition alleging standing of a nonparent under section 601(b) of the Dissolution Act. 750 ILCS 5/601(b) (West 1992).

On September 11, 1992, the aunt and uncle filed a petition for custody but did not file a petition for leave to intervene. A second status hearing, held on September 11, 1992, was very brief because the home study had not been completed. Although the mother argued that the court should rule on the standing issue, the court refused and instead scheduled another hearing for October 5, 1992. On September 29, 1992, the mother filed a motion to dismiss the aunt and uncle's petition for custody. At the hearing on October 5, 1992, the court was unable to recall whether the mother had raised her objections to standing and, as a result, asked to see a transcript of the proceedings.

On October 16, 1992, yet another hearing was held. The court, having reviewed the transcript of the May 4 hearing, found that the mother had clearly preserved her objection to standing. The aunt and uncle admitted that they did not have standing prior to the May 4 court order awarding them temporary physical custody. After hearing arguments, the trial Judge called the DCFS hotline and spoke to an investigator in an attempt to get DCFS involved in the case. The court then advised the aunt and uncle that they could file a ...

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