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03/31/97 V.Z. v. M.Z. AND J.R. SR.

March 31, 1997

IN THE INTEREST OF: V.Z., P.R., T.R., M.R., J.R., MINORS-RESPONDENTS APPELLEES, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
M.Z. AND J.R. SR., RESPONDENTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN SORRENTINO, JUDGE PRESIDING.

Released for Publication May 12, 1997.

The Honorable Justice Gordon delivered the opinion of the court. Cahill and Leavitt, JJ., concur.

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON delivered the opinion of the court:

M.Z. and J.R. Sr. appeal from the trial court order adjudicating V.Z., P.R., T.R., M.R. and J.R. wards of the court and from the dispositional order continuing custody of P.R., T.R., M.R. and J.R. with M.Z. and J.R. Sr. under an order of protective supervision. At the conclusion of the adjudicatory hearing, the trial court found that V.Z. had been sexually abused by J.R. Sr., her stepfather. *fn1 See 705 ILCS 405/2-3(2)(iii) (West 1992). The court further found that V.Z. was abused or neglected by M.Z. and J.R. Sr. based upon evidence showing lack of care, injurious environment, and substantial risk of physical injury. See 705 ILCS 405/2-3(1)(a) (lack of care), 3(1)(b) (injurious environment), 3(2)(ii) (substantial risk/physical injury) (West 1994). With respect to P.R., T.R., M.R., and J.R., the court made findings of abuse and neglect by M.Z. and J.R. Sr. based upon evidence showing the existence of an injurious environment resulting from the sexual abuse of V.Z. See 705 ILCS 4-5/2-3(1)(b) (West 1992).

On appeal, M.Z. and J.R. Sr. argue that the petitions for adjudication of wardship should have been dismissed because the adjudicatory hearing was held beyond the time limits of section 2-14 of the Juvenile Court Act of 1987 (the Juvenile Court Act) (705 ILCS 405/2-14 (West 1992)). They also argue that they were unfairly prejudiced at the adjudicatory hearing when the judge allowed non-expert opinion testimony concerning an ultimate issue in the case.

The facts relevant to the timeliness of the adjudicatory hearing show that on July 23, 1993 petitions for adjudication of wardship were filed with respect to V.Z., P.R., T.R., M.R. and J.R. A temporary custody hearing was held that day. On the next court date, October 25, 1993, V.Z.'s natural father, T.G., who had been served by publication, was defaulted for want of appearance or answer. The court set the adjudicatory hearing for December 21, 1993. On that date, the assistant public defender, who was representing M.Z. and J.R. Sr., requested a continuance; and the cause was continued by agreement and pursuant to court order to July 11, 1994. Further continuances by agreement were granted by court order on July 11, 1994 to July 29, 1994 and on July 29, 1994 to October 25, 1994. On October 25, 1994, M.Z. and J.R. Sr. stated they were ready to proceed to adjudicatory hearing, and the cause was continued by agreement to December 5, 1994. An order dated December 5, 1994 shows that the adjudicatory hearing was further continued by agreement of all the parties to January 30, 1995, although a line was drawn through that date and the date of December 20, 1994 was written above it. The transcript of that hearing, which does not identify the individuals who were present, discloses the following colloquy:

"THE COURT: Give the dates on those other cases that are being continued.

UNIDENTIFIED VOICE: The [Z.] and [P.R., T.R., M.R. and J.R. Jr.] case, 93 JA 3440 and 93 JA 3449-52 is being continued to January 30th, 1995, for trial."

On December 21, 1994, M.Z. and J.R. Sr. filed a "Motion to Dismiss." In that motion they made the following excerpted allegations regarding the December 5, 1994 order of continuance:

"6. On December 5, 1994, the court was not in session.

7. The original continuance date was January 30, 1995.

8. The public defender's office, on behalf of the parents, requested a sooner date to comply with the 30 day time limit of the statute.

9. The trial was set for December 20, 1994.

10. On December 19, 1994, the public guardian's office informed the assistant public defender assigned to the case that she was unaware that the date had been changed and would not be ready for trial on December 20, 1994."

M.Z. and J.R. Sr. requested that the petitions for adjudication of wardship be dismissed or "in the alternative" that a trial date be set "within 30 days from December 5, 1994 to comply with the statute."

On December 23, 1994, at the hearing on the motion to dismiss, the assistant public guardian, who was representing the minors, reiterated the agreement of the parties on December 5, 1994 to continue trial to January 30, 1995. In this regard she stated:

"Your Honor, if I can clarify for the record, the initial date that was set, agreed upon by all the parties, including Guardian of record, Sherry Fox, was for January 30th.

Apparently the date was changed after that without notifying her. Yes, Mr. Mondairo was notified and told Ms. Fox if she had any problem to notify the parties.

Ms. Fox, the next day came down, notified the court, indicated that she would, of course, be out-of-town [sic ] that date, and that the original court date that was set, January 30th with all parties present, should stand. And the court order reflected that was the original date that was going to be set."

The court did not make any finding regarding the hearing date change from December 20, 1994 to January 30, 1995. It denied the motion to dismiss but entered an order "on motion of the Public ...


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