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05/31/95 J.S. ET AL. v. J.S. AND C.S.

May 31, 1995

IN RE J.S. ET AL., MINORS, (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
J.S. AND C.S., RESPONDENTS-APPELLANTS).



Appeal from the Circuit Court of Du Page County. Nos. 93-J-731, 93-J-732. Honorable Robert J. Anderson, Judge, Presiding.

As Corrected June 7, 1995.

The Honorable Justice Thomas delivered the opinion of the court: Geiger and Doyle, JJ., concur.

The opinion of the court was delivered by: Thomas

JUSTICE THOMAS delivered the opinion of the court:

The respondents, J.S. and C.S., filed separate appeals from an order of the circuit court of Du Page County dated April 18, 1994, entered in both proceedings below, which removed them from the custody of their parents and placed them in foster care. The appeals were consolidated for review. We reverse.

The record reveals the relevant facts to be as follows. On July 30, 1993, the State filed two petitions alleging J.S. and C.S. to be neglected minors pursuant to section 802-3 of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 802-3 (now codified, as amended, at 705 ILCS 405/2-3 (West Supp. 1993))) and requesting that they be made wards of the court. At a dispositional hearing held on October 18, 1993, the trial court entered an order in both proceedings adjudicating the minors neglected and making them wards of the court, with guardianship to the Department of Children and Family Services (DCFS). The trial court indicated at the hearing that custody of the minors would remain with their parents, John and Christine Sena (the Senas).

On December 6, 1993, the trial court entered an order which removed the minors from the custody of the Senas and granted DCFS both custody and guardianship of the minors instanter. The court denied the Senas' subsequent motions for reconsideration. On February 1, 1994, the court ordered the return of the minors to the custody of the Senas instanter.

On April 18, 1994, the trial court again entered an order that the minors be removed from the custody of the Senas. The Senas were not present at the time. The children were removed from their parents' custody two days later. That day, the Senas appeared in court with counsel on an emergency basis, at which time they testified that they had not been informed that they were to be in court on April 18, 1994, and requested the immediate return of their children to their custody. The Senas subsequently filed motions to vacate the April 18, 1994, order on the grounds that no petition requesting a change of custody had been filed by the State (705 ILCS 405/2-13 (West Supp. 1993)), nor were they given notice and an opportunity to be heard by the court regarding the issue of a change of custody (705 ILCS 405/2-28 (West Supp. 1993)).

Hearing on the motions to vacate was set for April 25, 1994, at which time the trial court determined that the Senas did not receive notice of the April 18, 1994, proceedings, but continued the matter until the next day for a ruling with respect to the motions to vacate. On April 26, 1994, the State moved to strike the motions to vacate. The State argued that DCFS, as legal guardian of the children, did not have to file a motion to change custody and did not have to provide notice to the Senas. Counsel for the Senas argued that the parents should have received notice prior to having the children removed from their custody. The trial court granted the motion to strike; nevertheless, it allowed for a custody hearing. The trial judge stated:

"Here is what I'm going to do and why I'm going to do it. In terms of the technical motion to vacate, which you filed, I'm going to grant the motion to strike.

But in my view that is not the end of the proceedings for today. ***

Here is what I'm going to allow. *** Although we're not an equity court, I think that we have to try to do equity and be fair in how things are done consistent with the best interest of the minor children.

I'm going to allow you to present any evidence that you wish to that you could have presented on Monday as to why this shouldn't happen, *** Go ahead and present that now.

I recognize that this hearing might take some time, but I also think it's our responsibility to try to do what is in the best interest, ...


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