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08/27/97 JUSTIN T. A MINOR (THE PEOPLE STATE

August 27, 1997

IN RE JUSTIN T., A MINOR, (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE, OFFICE OF THE COOK COUNTY PUBLIC GUARDIAN, RESPONDENT-APPELLANT).


APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS. No. 96-JA-3361. THE HONORABLE JEFFREY M. ARNOLD JUDGE PRESIDING.

Released for Publication October 9, 1997.

Presiding Justice Cousins delivered the opinion of the court. Leavitt and Cahill, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

The minor, Justin T., by his attorney and guardian ad litem, appeals from an order of the circuit court granting the State's motion to dismiss the petition for adjudication of wardship filed on behalf of the minor without first appointing an attorney and guardian ad litem to represent the minor. On appeal, the minor argues that the court's refusal to appoint a guardian ad litem for the child, who was the subject of child protection proceedings, violated the express requirements of the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 1992)) and denied the child due process of law and meaningful access to the court.

BACKGROUND

On July 2, 1996, the State filed a petition for adjudication of wardship on behalf of Justin T., a minor who was born on October 11, 1993. The petition alleged that Justin was neglected and abused. The petition listed Justin's mother as Lorie Ann T. of Oak Forest, Illinois, and alleged that, on or about June 30, 1996, she left Justin with a friend without providing an adequate plan for his care. The petition also alleged that Justin tested positive for controlled substances at birth. The State also filed a petition for the appointment of the Department of Children and Family Services (DCFS) as Justin's temporary custodian. This petition alleged that Lorie Ann's whereabouts were unknown.

A hearing was held on both of the petitions on July 2, 1996. At the hearing, the State advised the court that it would move to dismiss the petition and present the basis for dismissal through the testimony of the individual who called to report that Justin was abused and neglected. At that time, the public guardian asked to be appointed as attorney and guardian ad litem on behalf of the minor. The State replied that its motion to dismiss should precede the ruling on the public guardian's request to be appointed. The public guardian argued that the minor had a constitutional right to be heard and have a guardian appointed under sections 1-5 and 2-17 of the Juvenile Court Act (705 ILCS 405/1-5, 2-17 (West 1992)). The State responded that the hearing on the motion to dismiss was not a hearing on the petition and that it, as the moving party on the motion, had a right to dismiss under the Code of Civil Procedure. The trial court indicated that it would hear from the State and then decide what should be done and allowed the State to call a witness.

The State called Gerald McNanari (McNanari) to testify in support of the motion to dismiss. McNanari testified that he called the DCFS hotline to report that Justin had been left at his home. However, McNanari testified at the hearing that, contrary to his report to DCFS, Justin was not just left at his home but that Justin lived and his mother lived with McNanari at his home. McNanari testified that he had been living with Justin's mother for six or seven years. McNanari testified that his report that Justin's mother had been raped in Justin's presence was not true. He also stated that his report that Justin's mother had told him that a loan shark struck Justin was true but that he had no evidence to support her statement. When the State asked McNanari why he made the false report, McNanari testified that he wanted to get rid of Justin because Justin's mother had left Justin with him for such a long time without returning and Justin was getting on his nerves. He explained that Justin's mother had a part-time babysitting job and that she did not return because her employers were late returning and they did not have a phone she could use to call him. McNanari further testified that he made sure this situation would never happen again by getting rid of the car to which Justin's mother had access. Based on this testimony, the State then moved to dismiss the petition.

The public guardian asked to question the witness and the State responded that the public guardian lacked standing to do so. The trial court then inquired about the allegations that Justin's environment was injurious, that Justin was a drug-exposed infant and that Justin's mother was undomiciled. The State responded that Justin was now 2 1/2 years old and that the testimony showed that the mother was not undomiciled. At that point, Justin's mother, who was present in court, stated that she had identification to prove her residence and the State tendered the mother's driver's license to the trial court. After reviewing Justin's mother's license, the trial court stated:

"Well, it appears that mother has a domicile, and that domicile is with the friend that made the report. And I would suggest to the guardian, if the guardian feels that something more has to be done -- I'll note that the Department did not take this minor into custody.

***

I'm sorry. They did take the minor into custody. Thank you. It appears to me what they have is a dispute within the house, and it *** started a ball rolling that shouldn't be rolling. I'm going to grant your motion to dismiss the petition. If the guardian feels there's a case here, they can certainly file a citizen's petition and bring it back."

At this point, the public guardian again asked to question the witness to which the State responded that the public guardian had no standing in the matter. In response, the trial court stated, "There's no one in the case except the State. A petition is ...


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