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August 19, 1997


Appeal from Circuit Court of McLean County. No. 96JA13. Honorable Elizabeth A. Robb, Judge Presiding.

Released for Publication September 18, 1997. As Corrected November 13, 1997.

Honorable Rita B. Garman, J., Honorable Robert J. Steigmann, P.j., - Concur, Honorable Robert W. Cook, J. - Dissent. Justice Garman delivered the opinion of the court. Steigmann, P.j., concurs. Cook, J., dissents.

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

On March 1, 1996, the State filed a petition for adjudication ofwardship in the circuit court of McLean County, alleging that L.W., a male minor born on October 22, 1995, had been physically abused by his parents, respondents Chad Wheeler and Shannon Gibson. It was alleged that respondents had inflicted, or allowed to be inflicted, physical injury to the minor by other than accidental means, in that on February 2, 1996, the minor was diagnosed as suffering from two broken bones and "Shaken Baby Syndrome." It was also alleged that respondents had created a substantial risk of physical injury to the minor by other than accidental means that would be likely to cause death, impairment of emotional health, or loss or impairment of bodily function. 705 ILCS 405/2-3(2)(i), (2)(ii) (West 1994). Pursuant to respondents' stipulation, the trial court found probable cause to believe that the minor was abused and ordered him placed in shelter care.

The adjudicatory hearing began on April 23, 1996. Several witnesses testified. Respondents had told medical personnel and a hospital social worker that a large dog had jumped on L.W. and caused his injuries. The medical testimony indicated the minor had suffered cardiac arrest at his home on February 1, 1996, and was taken to a hospital. He was subsequently transferred to another hospital, where he was treated He had multiple bruises on his face and trunk, evidence of hemorrhage in the back of his eyes, and he was severely anemic. He had a broken right arm, broken left leg, and extensive hemorrhaging in his brain. The leg fracture was a spiral fracture, which would have required tremendous force to create. L.W. was also found to have rib fractures and lung damage resulting from a contusion to his lungs. The diagnosis was multiple trauma secondary to inflicted injuries. Someone had shaken L.W. in a very violent manner. The broken bones and bruises suggested a blunt force trauma. At that time, L.W. remained in the hospital in a chronic vegetative state with minimal brain activity. He was unable to breathe without a respirator. He was not expected to live. It was the opinion of the testifying physicians that the injuries L.W. suffered could not have been caused by a dog jumping on him.

The adjudicatory hearing was continued to June 25, 1996. When that hearing convened, counsel for respondent mother made an oral motion to dismiss the State's petition for lack of jurisdiction, representing to the court that L.W. died on May 28, 1996. The court required that a written motion be filed and asked all parties to brief the issue. On August 22, 1996, the court entered a written order granting the motion to dismiss, finding that it had lost jurisdiction to continue with the adjudicatory process once L.W. died. The court based its reasoning on the fact that the Juvenile Court Act of 1987(Act) (705 ILCS 405/1-1 et seq. (West 1994)) was enacted to provide shelter and care for minors when their parents or other caregivers are unable or unwilling to do so. The court expressed the opinion that when a respondent minor dies, there is no further reason to continue with the case. The State thereafter filed its notice of appeal. We now reverse and remand.

Neither respondent has filed a brief in this appeal. However, since the record is simple and the issue the State raises is clear, we will address the merits of the case. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).

The State argues the language of section 2-3 of the Act demonstrates that the trial court does not lose jurisdiction over a case even if a minor who is the subject of the proceeding dies prior to adjudication. That section provides in relevant part as follows:

"Neglected or abused minor.

(2) Those who are abused include any minor under 18 years of age whose parent or immediate family member, or any person responsible for the minor's welfare, or any person who is in the same family or household as the minor, or any individual residing in the same home as the minor, or a paramour of the minor's parent:

(i) inflicts, causes to be inflicted, or allows to be inflicted upon such minor physical injury, by other than accidental means, which causes death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function[.]" (Emphasis added.) 705 ILCS 405/2-3(2)(i) (West 1994).

The State has not called to our attention, nor have we found in our independent research, any case that deals with the precise issue before us. The State argues that its interest in the welfare of a child does not cease upon the child's death. In support of its position, it cites People v. Eveans, 277 Ill. App. 3d 36, 660 N.E.2d 240, 214 Ill. Dec. 49 (1996), in which defendant was convicted of the murders of two of her children. There, on appeal, one of the defendant's arguments was that the trial court had erred in admitting testimony of her former husband concerning statements she had made to him during the marriage that she had killed the children. This court noted the statutory marital privilege that prevents a spouse from testifying against another spouse as to any conversation between them during the marriage unless the interests of their children or any children in their care are directly involved. Defendant argued that, since her children weredead, no interest of theirs was involved in the case. We rejected that argument, stating that when a child is murdered by a parent, the State stands in the shoes of the deceased child to serve several continuing interests, such as (1) seeing the murderer brought to justice, (2) protecting other children from violent acts by the same defendant, and (3) deterring similar behavior. in other potentially abusive parents. We noted the State has a compelling interest in child welfare and that the child-interest exception to the marital privilege should be construed broadly in order to afford the greatest protection possible to children, rather than to the murderous or abusive spouse. Eveans, 277 Ill. App. 3d at 44-45, 660 N.E.2d at 246-47.

In In re K.S., 264 Ill. App. 3d 963, 637 N.E.2d 1163, 202 Ill. Dec. 427 (1994), in which a minor died while in foster care, the public guardian filed a motion to compel the Department of Children and Family Services (DCFS) to file a report concerning the death. The trial court granted the motion. DCFS tiled a motion for nondisclosure of a certain report the court had required that it disclose, claiming privilege. The court denied the motion and DCFS appealed. The appellate court addressed the issue as one of jurisdiction of the juvenile court to enter any order concerning a ward of the court after the ward died. The court noted that the circuit courts have jurisdiction over all justiciable matters and that the legislature has no authority to limit the jurisdiction of the courts over matters that existed at common law. However, where the legislature passes a law that creates a new justiciable matter, which did not exist at common law, the statute itself defines the limits of the court's jurisdiction. The appellate court concluded that ...

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