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09/25/96 B.A. v. B.A.

September 25, 1996

IN RE B.A., B.A. AND J.M., MINORS (THE PEOPLE OF THE STATE OF ILLINOIS), PLAINTIFF,
v.
B.A., B.A. AND J.M., DEFENDANTS-APPELLEES, THE ILLINOIS DEPARTMENT OF CORRECTIONS, INTERVENOR-APPELLANT.



Appeal from the Circuit Court of the 9th Judicial Circuit, Fulton County, Illinois. No. 95--J--68. Honorable Patricia A. Walton, Judge Presiding.

Released for Publication October 30, 1996.

Present - Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. Justice McCUSKEY delivered the opinion of the court: Slater and Lytton, JJ., concur.

The opinion of the court was delivered by: Mccuskey

On appeal, Hughes defends the trial court's visitation order on the grounds that: (1) it is permissible under the Juvenile Court Act of 1987 (the Act) (705 ILCS 405 et seq. (West 1994)); (2) section 10-135 of the Code of Civil Procedure (habeas corpus ad testificandum statute) (735 ILCS 5/10-135 (West 1994)) provides a basis for the order; and (3) his procedural and substantive due process rights are implicated in this case.

Following our careful review of the record and applicable law, we reverse and vacate that portion of the trial court's order directing IDOC to transport Hughes to the Fulton County courthouse for visitation with his daughter.

FACTS

On October 11, 1995, the State instituted abuse and neglect proceedings regarding J.M. and other minor children based on the conduct of their mother and stepfather. A guardian ad litem was appointed to represent the interests of the minor children. The record shows that Hughes, J.M.'s biological father, had never met his 13 year-old daughter prior to the trial court's order. Hughes is incarcerated at the Pontiac Correctional Center as the result of a felony conviction for threatening a public official. Hughes was given notice of the proceedings in Fulton County, and an attorney was appointed to represent Hughes' interests. J.M. expressed, through the guardian ad litem, a desire to meet her biological father.

On March 5, 1996, the trial court issued an order directing IDOC: (1) to allow Hughes to receive telephone calls from his attorney at various times selected by the court; (2) to allow J.M. to photograph Hughes; (3) to bring Hughes to the Fulton County courthouse for visitation with J.M. approximately one hour prior to each court proceeding related to the abuse and neglect proceedings; and (4) to allow J.M. to call Hughes once per month for 30 minutes.

IDOC intervened and sought to vacate the trial court's order. On June 4, 1996, the court denied IDOC's request to vacate the order. The court determined: (1) the case is controlled by the provisions of the Act, which require that it should be "liberally construed" to strengthen a minor's family ties whenever possible; (2) that People v. Lego, 212 Ill. App. 3d 6, 570 N.E.2d 402, 155 Ill. Dec. 889 (1991) does not provide a basis for vacating the order; and (3) a slight modification of the telephone portion of the order was necessary to comply with IDOC's policies.

ANALYSIS

I. The Juvenile Court Act

The trial court stated that its order was based on the Act. Section 1-5 of the Act states: "the minor *** and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and also *** to be represented by counsel." 705 ILCS 405/1-5 (West 1994). We note that while Hughes is a necessary party respondent under the Act, his presence in court is not required during the abuse and neglect hearing. See In re C.J., 272 Ill. App. 3d 461, 465, 650 N.E.2d 290, 293, 208 Ill. Dec. 833 (1995). The record is clear that the abuse and neglect hearing involves allegations against J.M.'s mother and stepfather, not Hughes.

Hughes claims the authority for the trial court's order comes from the language of the Act which says it is to be "liberally construed" to "strengthen the minor's family ties." 705 ILCS 405/1-2 (West 1994). We find no merit to this argument.

IDOC is charged by the General Assembly with maintaining programs of control, rehabilitation and employment of prisoners. 730 ILCS 5/3-2-2(a) (West 1994). IDOC has the power to assign prisoners to any of its facilities throughout the State. 730 ILCS 5/3-2-2(b) (West 1994). Courts should not intervene in the internal operations of the penitentiary system of this State without specific statutory authority. People ex rel. Willis v. Department ...


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