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August 22, 1997


Appeal from the Circuit Court of Cook County. Honorable Lynne Kawamoto, Judge Presiding.

As Corrected September 24, 1997. The Name of this Case has been Corrected by the Court September 29, 1997. Released for Publication October 9, 1997.

Presiding Justice Greiman delivered the opinion of the court. Theis, J., and Zwick, J., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

This is the minor-respondent's appeal from an order of the child-protection court (trial court) allowing the public defender's motion on behalf of the parents-respondents for substitution of judge as of right pursuant to section 2-1001 (a)(2) of the Code of Civil Procedure (735 ILCS 5/2-1001 (a)(2) (West 1994)).

The trial court adjudicated five children of the mother-respondent wards of the court on August 2, 1996. On August 23, 1996, the mother gave birth to a sixth child, Daniel, who has a different father than the other children. The State subsequently filed a neglect petition on behalf of Daniel. On September 26, 1996, the trial court entered an order allowing the public defender's motion on behalf of the parents-respondents for substitution of judge as of right concerning Daniel's petition.

On November 4, 1996, the trial court found that its order allowing a substitution of judge as of right involved an important and currently unresolved question of law. Accordingly, the trial court certified the following question for our review pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308):

"Under the Juvenile Court Act, are abuse and neglect petitions filed on behalf of siblings and/or half siblings of children already under the jurisdiction of the court new actions which would entitle a parent-respondent to substitution of judge as of right under section 2-1001(a)(2) of the Code of Civil Procedure, or are such later-filed petitions merely continuations of or amendments to a single, ongoing family case, which would require a parent-respondent seeking a substitution of judge to demonstrate actual prejudice or other cause under section 2-1001?"

The public guardian argues against allowing substitution as of right under these circumstances for the following reasons: (1) a petition filed on behalf of a minor with siblings already before the trial court constitutes an amendment to a unified "family" case; (2) allowing substitution as of right is contrary to the purpose of the Juvenile Court Act of 1987 (705 ILCS 405 1-1 et seq. (West 1994)), established custom and practice and wastes judicial and public resources; (3) allowing substitution as of right will lead to "judge shopping"; (4) as applied, section 2-1001(a)(2) violates the separation of powers clause in the Illinois Constitution; and (5) new sibling petitions are analogous to postdecree petitions under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq (West 1994)).

The State's Attorney agrees with the public defender that the correct legal conclusion would allow for substitution as of right under these circumstances, but argues that this court should recognize or create a flexible rule whereby the juvenile court may exercise its discretion in consolidating cases relating to individual children in the same family before a single judge.

For the reasons that follow, we affirm the trial court's order granting substitution of judge as of right.

Lazaro F. (Lazaro) and Martha Elizondo (Martha) are the parents of five daughters. On April 18, 1995, Lazaro took four of the girls to Christopher House Shelter. Lazaro, who did not identify himself as the girls' father, told an employee at the shelter that the children's mother had abandoned them. He left, saying his car was running, and never returned.

The children, Gladiz, Barbara, Teresa and Jessica, ranging in age from seven to two, told the worker the man was their father. The children said they did not know where their mother was and they believed their oldest sister, 11-year-old Cecilia, was still with their father.

On June 3, 1995, Lazaro asked David Gonzalez (Gonzalez), a man who worked at a sporting goods store, to take Cecilia because she needed a place to stay and something to eat. Gonzalez agreed and took Cecilia to the home where his own daughter lived with his girlfriend and the girlfriend's mother. Lazaro never returned for Cecilia.

On April 20, 1995, the State's Attorney filed petitions for adjudication of wardship on behalf of Gladiz, Barbara, Teresa and Jessica. A few weeks later, the State filed a petition on behalf of Cecilia. The trial court awarded temporary custody of the children to the Illinois Department of Children and Family Services (DCFS) and continued the matter for hearing on the State's petitions.

On June 4, 1996, the court held an adjudicatory hearing regarding all of the children but Cecilia, whose case was continued to afford the State time to subpoena an additional witness. Two witnesses testified at the June 4, 1996, hearing, Phoebe Leopoldo (Leopoldo), a worker from Christopher House, and Martha.

Leopoldo testified to the deposit of the four younger girls with Christopher House and the father's failure to return for them. Leopoldo notified the police, who came and took the children from the shelter.

Martha testified that she was in jail in Milwaukee, Wisconsin, during March and April of 1995. Upon her release, she returned to the family apartment in Milwaukee and found it empty. She did not know where Lazaro and her five children were.

Martha further testified that she was homeless until Lazaro found her on the streets. He told her that the children were staying with a friend and that he had rented an apartment for the family in Chicago. When she and Lazaro arrived in Chicago, they picked up the girls and took them to the "apartment," which turned out to be a shelter.

Martha said that one of Lazaro's friends gave him some drugs and "from then on he was on it, he's always been on it." She testified that, one day in April, she left the shelter to get food, and upon her return four hours later, Lazaro and the children were gone. Martha remained at the shelter for about a month but did not contact authorities with respect to the children.

The trial court found the four girls neglected because both parents failed to provide them with the care necessary for their well-being. The court noted specifically Martha's failure to make any efforts to locate her children. The court then continued the case to August 2, 1996, for an adjudicatory hearing regarding Cecilia and a dispositional hearing regarding all the girls.

Four witnesses testified at the August 2, 1996, hearing, including the people to whom Cecilia had been entrusted. The testimony indicated that Cecilia had been exposed to her parents' drug use and lived in an injurious environment lacking stability and support.

Martha testified that Lazaro physically abused her and kept the whereabouts of the children from her, that she was homeless in Milwaukee, and that she had no way of inquiring as to the welfare of her children. Martha eventually "ran into" Lazaro, and he asked her to accompany him to Chicago, where he had rented an apartment from which he later removed the children without advising Martha or relaying their whereabouts.

Based upon the above testimony, the trial court found that Cecilia was neglected because her parents failed to provide her with the necessary care and because they failed to ensure that Cecilia was in a safe environment. The court proceeded to hold a dispositional hearing for all five girls.

Two Catholic Charities case workers testified at the dispositional hearing. Kathleen Walsh (Walsh) testified that she was assigned to work with Barbara, Teresa, Gladiz and Jessica in July 1995 and that the girls were placed together in a nonrelative foster home.

Martha visited the girls monthly. She had cooperated with some of the services offered through the agency. She had completed a psychological evaluation and a drug assessment, but she had not completed parenting classes or initiated counseling.

Walsh reported that Martha had two or three negative urine drops in June 1996, so that her drug assessment indicated that she did not need ...

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