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December 14, 1994


Appeal from the Circuit Court of Cook County. Honorable Denise O'Malley, Judge Presiding.

The Honorable Justice Greiman delivered the opinion of the court: Tully, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Respondent Raquel Dora appeals the trial court's order awarding permanent custody of her two minor children to their great-grandmother, petitioner Mable Colbert.

Respondent argues petitioner lacked standing under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/601(b)(2) (West 1992)) (the Act), and the trial court: (1) improperly exercised plenary jurisdiction to base the custody award upon equitable principles; (2) denied the parties due process by prematurely ruling on the merits before addressing respondent's motion to strike the emergency custody petition; and (3) improperly failed to recuse herself after receiving an ex parte communication from a third party concerning the case.

Pursuant to this order governed by Illinois Supreme Court Rule 23(a)(1) (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23(a)(1), effective July 1, 1994), we affirm in part, reverse in part and remand.

Respondent is the natural mother of Startrice Nicole Anderson who was born in August 1991, and Brittany Denise Cannon who was born in February 1993. On June 19, 1993, the children began to reside with petitioner, their great-grandmother, at her residence in Chicago.

Upon application to the Probate Division of the Circuit Court of Cook County (see 755 ILCS 5/1-1 et seq. (West 1992)), the court granted petitioner permanent custody of both children beginning October 15, 1993 and until 10:30 a.m. on January 7, 1994.

On January 5, 1994, petitioner filed an "Emergency Petition for Custody" with the Domestic Relations Division of the Circuit Court of Cook County (see 750 ILCS 5/601 (West 1992)). The next day both probate proceedings were dismissed for petitioner's lack of standing, and respondent filed a "Special and Limited Appearance" and a "Motion to Strike Emergency Petition For Custody Due to Lack of Subject Matter Jurisdiction" which alleged petitioner lacked standing pursuant to section 601(b)(2) of the Act. Also on this day the domestic relations court entered an order maintaining the status quo (i.e., the children would reside with petitioner) until further orders of the court; granted respondent visitation rights with the children; and set a hearing on the motion to strike. Although the order does not reflect it, the court further appointed the Public Guardian of Cook County to represent the children and he entered an appearance on January 11, 1994.

The hearing on the petition and motion to strike began on January 11 and lasted for several days during which testimony was presented by both parties, the children's grandmother Laverne Julian and a treating physician; the latter testifying about the alleged sexual abuse of Startrice, which the trial court subsequently found petitioner failed to prove.

On January 31, 1994, the court rendered a verbal decision on the motion to strike and then entered an order which amended visitation and provided that respondent's boyfriend and Brittany Cannon's father, Harry Cannon, not be present during visitation due to his propensity for violence; directed respondent to attend in-patient drug treatment and continue the treatment on an out-patient basis as recommended; and also directed the Public Guardian to "investigate petitioner and (respondent's) home environment" and to report back to the court in that regard.

On February 8, 1994, the court entered an order finding petitioner lacked standing under section 601(b)(1). However, the court exercised plenary jurisdiction to allow the Public Guardian to bring a petition for custody on grounds that the children were in "imminent danger" should they be placed with respondent, whom the court found suffering from mental illness, emotionally and financially unstable, lacking nurturing skills and violent. In its decision, the court questioned respondent's motives for wanting to regain custody after she admitted converting the children's public aid money for her own use since June 1993. The court then ordered investigations by the Illinois Department of Children and Family Services (DCFS) and the Psychiatric Institute for respondent, her mother and petitioner.

The court subsequently entered a "caveat" to its decision which stated that several days after writing its opinion, a telephone call was received from a DCFS caseworker pursuant to its order of investigation. During the conversation, the court learned that at least one other report alleging abuse and neglect had been filed concerning respondent. The court also learned that on January 22, 1994, respondent had given birth to a cocaine-addicted baby and had also tested positive for cocaine on that date. To the court's stated dismay, the baby had been released to respondent's custody where Harry Cannon might also reside since he was living with respondent at least from the time of the caseworker's visit.

Petitioner argues she had standing under section 601(b)(2) of the Act, and the trial court was within its jurisdiction to ...

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