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10/07/96 H.R. AND M.R. v. THOMAS RADECKI AND DIANE

October 7, 1996

IN THE INTEREST OF H.R. AND M.R., ALLEGED ABUSED/NEGLECTED MINORS, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLANT,
v.
THOMAS RADECKI AND DIANE ZDUNICH F/K/A RADECKI, RESPONDENTS-APPELLEES.



Appeal from Circuit Court of Champaign County. No. 95J351. Honorable Ann A. Einhorn, Judge Presiding.

Released for Publication October 7, 1996. As Corrected January 2, 1997.

Honorable John T. McCullough, J., Honorable Robert W. Cook, P.j. - Concur, Honorable Rita B. Garman, J. - Concur. Justice McCULLOUGH delivered the opinion of the court:

The opinion of the court was delivered by: Mccullough

The State's arguments on appeal are (1) the trial court's reliance on In re S.G., 277 Ill. App. 3d 803, 661 N.E.2d 437, 214 Ill. Dec. 583 (1996), appeal allowed, 166 Ill. 2d 540 (1996), was erroneous because that decision did not recognize that the 90-day period in section 2-14 of the Act violated the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, ยง 1); and (2) the statutory language did not mandate dismissal if the adjudicatory hearing had been started, but not completed, within the 90-day period. Respondent mother is not a party to this appeal. However, respondent father initially argues that the State's arguments are waived because they were not raised in the trial court. It is clear from a reading of the transcript of the hearing on the motion to dismiss that the State argued the decision in S.G. was distinguishable on its facts and the 90-day provision in section 2-14 of the Act did not require dismissal in this case. In addition, the question of the constitutionality of the statute may be raised at any time. People v. Bryant, 128 Ill. 2d 448, 453-54, 539 N.E.2d 1221, 1223-24, 132 Ill. Dec. 415 (1989). Therefore, we decline to find waiver.

The separation of powers issue is not addressed as it is unnecessary to disposition of this appeal. Courts generally do not address constitutional issues unnecessarily, i.e., where a case may be resolved on other grounds. Exchange National Bank v. Lawndale National Bank, 41 Ill. 2d 316, 321, 243 N.E.2d 193, 195 (1968); In re Marriage of Bennett, 225 Ill. App. 3d 828, 830, 587 N.E.2d 577, 579, 167 Ill. Dec. 308 (1992).

Even though the Supreme Court of Illinois has granted a petition for leave to appeal in S.G., we will decide this case instead of staying it pending the decision of the supreme court in S.G. because of the distinctions between the two cases and because of the potential for harm to H.R. and M.R.

Section 2-14 of the Act reads, in relevant part:

"(a) Purpose and policy. The legislature recognizes that serious delay in the adjudication of abuse, neglect, or dependency cases can cause grave harm to the minor and the family and that it frustrates the best interests of the minor and the effort to establish permanent homes for children in need. The purpose of this Section is to insure that, consistent with the federal Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272, as amended, and the intent of this Act, the State of Illinois will act in a just and speedy manner to determine the best interests of the minor, including providing for the safety of the minor, identifying families in need, reunifying families where it is in the best interests of the minor, and, if reunification is not in the best interests of the minor, finding another permanent home for the minor.

(b) When a petition is filed alleging that the minor is abused, neglected or dependent, an adjudicatory hearing shall be held within 90 days of the date of service of process upon the minor, parents, any guardian and any legal custodian.

(c) Upon written motion of a party filed no later than 10 days prior to hearing, or upon the court's own motion and only for good cause shown, the Court may continue the hearing for a period not to exceed 30 days, and only if the continuance is in the best interests of the minor. When the court grants a continuance, it shall enter specific factual findings to support its order, including factual findings supporting the court's determination that the continuance is in the best interests of the minor. Only one such continuance shall be granted. A period of continuance for good cause as described in this Section shall temporarily suspend as to all parties, for the time of the delay, the period within which a hearing must be held. On the day of the expiration of the delay, the period shall continue at the point at which it was suspended.

The term 'good cause' as applied in this Section shall be strictly construed and be in accordance with Supreme Court Rule 231(a) through (f). Neither stipulation by counsel nor the convenience of any party constitutes good cause. If the adjudicatory hearing is not heard within the time limits required by subsection (b) or (c) of this Section, upon motion by any party the petition shall be dismissed without prejudice.

(d) The time limits of this Section may be waived only by consent of all parties and approval by the court." (Emphasis added.) 705 ILCS 405/2-14 (West 1994).

In S.G., the petition for adjudication of wardship was filed on April 28, 1992, alleging sexual abuse and injurious environment. A temporary custody hearing was conducted that day, and custody was temporarily removed from the mother. When the mother was released from jail after criminal charges were dismissed, she requested a second temporary custody hearing, which was conducted on June 22, 1992. The children's fathers were given notice by publication and were defaulted on September 1, 1992. Following a continuance for good cause from the original November 10, 1992, hearing date, the hearing was begun on December 15, 1992. The appellate court in S.G. summarized the proceedings between September 1, 1992, and the March 12, 1993, determination of neglect as follows:

"Space does not permit us to provide details of the proceedings on each of the 21 occasions this case was heard between April 28, 1992, and March 12, 1993, when the adjudication hearing was completed. Suffice it to say that the trial judge kept trying to find time for the hearing, Pearlie [(the mother)] continuously asked for a trial, the State answered ready, lawyers made motions and objections, and the case was heard piecemeal after a perfunctory ...


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