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March 15, 1996


Appeal from Circuit Court of Macon County. No. 94J564. Honorable John K. Greanias, Judge Presiding.

Released for Publication March 15, 1996. As Corrected August 9, 1996.

Honorable Rita B. Garman, J., Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, J., Concurring. Justice Garman delivered the opinion of the court:

The opinion of the court was delivered by: Garman

JUSTICE GARMAN delivered the opinion of the court:

Respondent Napoleon Williams appeals from an order of the circuit court of Macon County, adjudicating his 17-month-old daughter, A.D.W., neglected and dependent. He argues the trial court erred (1) in its findings at the shelter-care hearing; (2) in denying his request for a shelter-care rehearing; and (3) in its findings at the adjudicatory hearing. We disagree and affirm.

On November 29, 1994, the State filed a petition alleging A.D.W. was dependent as she was without parent, guardian, or legal custodian (705 ILCS 405/2-4(1)(a) (West 1994)) and neglected, in that her environment was injurious to her well-being (705 ILCS 405/2-3(1)(b) (West 1994)). A shelter-care hearing was held on December 2, 1994. Respondent was unable to attend due to his incarceration at Lincoln Correctional Center (Lincoln) in Logan County, Illinois. Mildred Jones, A.D.W.'s mother, was present at the hearing in the custody of the sheriff.

The trial court found probable cause to believe A.D.W was dependent and neglected, and that it was a matter of immediate and urgent necessity to place her in shelter care and that reasonable efforts could not prevent the removal of A.D.W. from her mother or father since they were incarcerated. The trial court also named the Department of Children and Family Services (DCFS) as temporary custodian and authorized DCFS to place A.D.W. with her grandmother.

On January 6, 1995, respondent was released from Lincoln. On January 10, 1995, he requested a shelter-care rehearing pursuant to sections 2-10(3) and 2-10(4) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-10(3),(4) (West 1994)). Rehearing was set for January 12, 1995, with respondent to give notice. The court also mailed a copy of the docket entry to respondent's last known address. On January 12, 1995, respondent was not present in court for the rehearing. The trial court ruled that he failed to give notice to the parties entitled to notice and, therefore, under the circumstances did not have a right to a hearing at that time. On January 20, 1995, the docket entry mailed to respondent was returned to the court showing that respondent moved without leaving a forwarding address.

On May 24, 1995, the trial court held an adjudicatory hearing. Both respondent and Jones were present at the hearing, in the custody of the sheriff's department. At the beginning of the proceedings, the trial court took judicial notice of case No. 90-CF-602 (People v. Williams (Cir. Ct. Macon Co.), No. 90-CF-602), a battery conviction against respondent for fondling his stepdaughter's breasts, and case No. 92-J-98 (In re U.D.W. (Cir. Ct. Macon Co.), No. 92-J-98), in which respondent's older daughter was adjudged neglected and taken into protective custody. The State asserted these cases were the basis for injurious environment to A.D.W.

Sharon Campbell, first-shift sergeant in the corrections division of the Macon County sheriff's department, testified that she was the record keeper of entrances and exits from the prison. She stated that respondent had been arrested and incarcerated on May 15, 1995, and remained incarcerated as of the date of the hearing.

Carol Tracey Lee testified she was a child-welfare specialist and child-protective investigator with DCFS and that she worked with the family from July 1992 through February 1995. She stated that on several occasions she requested respondent to participate in counseling to address sexual abuse issues. Respondent refused her requests, even though counseling was available to him at minimal or no cost. On cross-examination, Lee testified that DCFS conducted an investigation regarding respondent and Jones after A.D.W.'s birth and the results showed A.D.W. was not at risk. She admitted that prior to the shelter-care hearing she learned Jones had given her mother consent for A.D.W.'s medical treatment. She also admitted that she never spoke with Jones regarding appointment of a guardian for A.D.W. At the time of the hearing, she did not know if Jones' mother had filed for guardianship over A.D.W.

Scott McAdams testified that he was a child-welfare specialist with DCFS assigned to respondent's case in February 1995. He attempted to persuade respondent to seek sexual abuse counseling and met with him on two or three occasions to discuss the matter. Respondent refused counseling because he did not feel it was necessary. McAdams was aware of DCFS reports investigating respondent for substantial risk of harm to his older daughter, which indicated risk of sexual penetration and sexual molestation. On cross-examination, McAdams stated he was also aware of an investigation regarding the risk of harm to A.D.W., which came back unfounded.

Respondent testified that DCFS conducted an investigation regarding the risk of harm to A.D.W. after she was born and determined the risk to be unfounded. Respondent stated that he had taken measures for A.D.W. to receive medical care if he or Jones were unable to care for her. No one from DCFS ever spoke with him concerning A.D.W.'s care. He explained that he refused to engage in counseling because DCFS had no basis for its request. On cross-examination, respondent admitted that he was incarcerated in November and December 1994 and released January 6, 1995.

Jones testified that no one from DCFS spoke to her about appointing a guardian for A.D.W. Had DCFS addressed the issue, she would have appointed her mother guardian. She also stated the DCFS investigation concerning risk of harm to A.D.W. came back unfounded. On ...

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