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04/22/94 P.P. v. VERONICA P.

April 22, 1994

IN THE INTEREST OF P.P., A MINOR, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE
v.
VERONICA P., RESPONDENT-APPELLANT



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE GARY BROWNFIELD, JUDGE PRESIDING.

Murray, McNULTY, Cousins, Jr.

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Veronica P., the mother of P.P., appeals from an order of the Cook County juvenile court which removed P.P. from her custody and placed her in the custody of the Gary T. Morgan, guardianship administrator for the Department of Children and Family Services (DCFS). Patrick T. Murphy, as public guardian, has filed a cross-appeal in this matter, contending that it was proper for the juvenile court to have removed P.P. from Veronica's custody, but that the court's finding, that an injury suffered by P.P. was not intentionally inflicted, was against the manifest weight of the evidence. The office of the Cook County State's Attorney, representing the State in this case, asks only that the juvenile court order granting DCFS guardianship of P.P. be upheld.

The underlying facts of this case are as follows:

On December 13, 1991, Veronica P., the mother of two children, N.P. and A.P., gave birth to a third child, P.P. After P.P. was born, Veronica became the subject of a neglect report due to the presence of cocaine in P.P.'s system at birth. On December 20, 1991, pursuant to section 2-10 of the Juvenile Court Act of 1987 (the Act) (Ill. Rev. Stat. 1991, ch. 37, par. 802-10; 705 ILCS 405/2-10 (West 1992)), DCFS filed a petition for adjudication of wardship of P.P. with the juvenile court and the court placed P.P. in the temporary custody of DCFS.

On February 3, 1992, Veronica P. appeared in court for the first time and was appointed counsel. On May 12, 1992, based upon an admission by Veronica P. that there was a controlled substance in P.P's system at the time of her birth, P.P. was adjudicated a neglected child pursuant to section 2-14 of the Act (Ill. Rev. Stat. 1991, ch. 37, par. 802-14; 705 ILCS 405/2-14 (West 1992)), and the matter was set for Dispositional hearing.

At the Dispositional hearing held July 22, 1992, evidence was presented regarding Veronica P.'s rehabilitation from drug abuse. The court returned custody of P.P. to Veronica, but entered an order of protective supervision pursuant to section 2-24 of the Act. (Ill. Rev. Stat. 1991, ch. 37, par. 802-24; 705 ILCS 405/2-24 (West 1992).) The date of September 28, 1992, was then set for a progress report on the case.

On September 28, 1992, at the progress hearing, the court was informed that on September 12, 1992, P.P. had suffered a scalding burn on her left hand, serious enough to require hospitalization. Because neither the DCFS worker nor the guardian ad litem (GAL) had been aware of the injury until the hearing date, the court continued the hearing until October 2, 1992. On October 2, 1992, the court was informed that Veronica P. had been arrested on the previous evening in relation to the injury to P.P. and that all three of Veronica's children were taken into protective custody and were being held in the hospital. The GAL indicated that a supplemental petition would be filed and asked that the matter be continued to October 6, 1992, for a hearing to determine whether P.P. should be removed from Veronica's custody.

On October 5, 1992, a petition for supplemental relief was filed by the public guardian requesting, in the best interest of P.P., that the 2-24 protective supervision order be vacated and Gary T. Morgan be appointed guardian with the right to place. DCFS also filed a petition for supplemental relief making the identical request, alleging that Veronica had violated the protective order by not providing P.P. with all the care necessary for her well-being.

On October 6, 1992, hearing was commenced on these petitions. At that time all of Veronica's children remained in protective custody. The court heard the testimony of several witnesses regarding the scalding injury to P.P.'s left hand. After hearing the testimony of these witnesses, the court expressed its belief that the State had not proven by a preponderance of the evidence that P.P. had been intentionally injured by Veronica. Nevertheless, the court indicated that the scalding burn, as well as bite marks found on P.P.'s check, indicated that Veronica had failed to keep P.P. safe from harm and constituted evidence that P.P. was neglected. Accordingly, the court stated that there was "probable cause, urgent and immediate necessity and reasonable efforts." The court then vacated the 2-24 order of supervision and appointed Gary T. Morgan guardian with the right to place. It is this order that is being appealed.

With respect to Veronica's other two children, the court found that the negligence to P.P. would "carry over" to these children, but that the risk of further harm to them, under the circumstances, was not so great that placement was required. Thus, the court held "probable cause, no urgent and immediate necessity," vacated the temporary custody order with regard to N.P. and A.P. and returned them to Veronica under a 2-25 order of protection. This order is not part of the appeal.

Veronica P., represented by the legal assistance foundation of Chicago, argues in her appeal that the court improperly removed P.P. from her custody without legal basis and without following proper statutory procedure. The office of the Cook County public guardian cross-appeals the court's finding that the scalding burn to P.P.'s hand was not intentionally inflicted, arguing that this finding was against the manifest weight of the evidence. The office of the Cook County State's Attorney asks only that this court uphold the juvenile court's decision to vacate the 2-24 order and place P.P. in the custody of Gary T. Morgan.

The first issue to be determined here is a procedural one, that is, whether juvenile court followed proper statutory procedure when it acted in this matter. Veronica P. argues that neither of the petitions for supplemental relief indicated under what provision of the Juvenile Code they were proceeding and that the court was unclear as to what stage of proceedings he was acting under, i.e., whether the hearing held was one to determine whether temporary care was necessary pursuant to section 2-10 of the Act; whether it was an adjudicatory hearing pursuant to sections 2-14, 2-18 and 2-21 of the Act; or whether it was a Dispositional hearing pursuant to sections 2-22 and 2-23 of the Act. The court seemed to indicate that it was acting under the authority it possessed by virtue of the 2-24 order of protective supervision and that, by vacating the 2-24 order, custody "reverted" to Gary T. Morgan. Veronica P. argues that, assuming that she violated the 2-24 order, the court had no authority to remove P.P. from her custody as a sanction for a violation of the 2-24 order. ...


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