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In re Abel C.

Court of Appeals of Illinois, Second District

August 20, 2013

In re ABEL C., a Minor
v.
Shana C., Respondent-Appellant The People of the State of Illinois, Petitioner-Appellee,

Opinion withdrawn October 3, 2013, Modified opinion filed October 3, 2013

Held[*]On appeal from the trial court’s orders finding respondent’s child a neglected minor, adjudicating the child a ward of the court, and granting custody to the Department of Children and Family Services, the cause was remanded for the limited purpose of allowing the trial court to enter the express factual basis for the finding of neglect, since no factual basis was provided in the court’s written order of adjudication or its oral pronouncement of the decision.

Appeal from the Circuit Court of Winnebago County, No. 12-JA-60; the Hon. Mary Linn Green, Judge, presiding.

Nicholas O. Meyer, of Meyer & Horning, P.C., of Rockford, for appellant.

Joseph P. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer and Sally A. Swiss, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Panel Justices Jorgensen and Hudson concurred in the judgment and opinion.

OPINION

JUSTICE McLAREN

¶ 1 Respondent, Shana C., the mother of Abel C., appeals from the trial court's orders: (1) finding Abel to be a neglected minor; and (2) adjudicating Abel a ward of the court and granting custody of Abel to the Department of Children and Family Services (DCFS). We affirm.

¶ 2 I. BACKGROUND

¶ 3 On February 17, 2012, DCFS took seven-day-old Abel into protective custody. The State thereafter filed a petition on February 22 alleging that Abel was a neglected minor under section 2-3(b) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3(b) (West 2010)), as his environment was injurious to his welfare, placing Abel at risk of harm, in that: (1) his siblings had been removed from Shana's care and she had failed to cure the conditions that caused their removal; (2) his siblings had been removed from the care of Javier C., their father and Abel's putative father, and he had failed to cure the conditions that caused their removal; and (3) Javier was an untreated sex offender. At the shelter care hearing held on that date, the trial court, Judge Patrick Heaslip presiding, addressed Shana:

"You are named in a Petition alleging that the minor is a neglected minor. In relation to that you have a right to have a lawyer represent you in these proceedings. If you can't afford one I will appoint one for you."

When she was asked if she could afford to hire an attorney, Shana told the trial court that her friends were going to give her money to hire an attorney but she did not have an attorney that day. Shana then denied that Javier, who was her husband, was Abel's father, but she could not otherwise name the father; further, she did not know when Abel was conceived and could not name with whom she had had sexual relations in the past two years. The court then appointed Amanda Sloniker, the Conflicts 1 attorney from the office of the public defender, to represent Shana. After speaking with Shana, Sloniker informed the trial court that Shana requested the appointment of private counsel or a continuance in order to obtain private counsel; she preferred "not to have an attorney from the Public Defender's office based on prior representation and how the prior cases were handled." The trial court denied the request. After another conversation with Shana, Sloniker told the trial court that Shana "would be waiving her right to shelter care, agreeing to temporary guardianship and custody to go to [DCFS]." The trial court found probable cause to believe that Abel was subject to the Act as a neglected minor and, as a matter of urgent and immediate necessity, it placed Abel in shelter care, granting DCFS temporary guardianship and custody. The hearing was continued as to Javier.[1]

¶ 4 On March 1, 2012, Shana appeared with private counsel, Chester Chostner, who filed his appearance; the trial court, Judge Mary Linn Green presiding, vacated Sloniker's appointment. Shana filed a motion to reconsider and vacate the February 22 order, arguing that she had requested a continuance, which was denied, and that she did not knowingly waive her right to a shelter care hearing. Sloniker informed the trial court that, at the February 22 hearing:

"I discussed with Mom the shelter care proceeding and that, however, she was, for lack of a better word, frazzled about the whole thing, and so it's possible that she in a, I guess, fit of frustration or not thinking clearly did agree to just go forward, but I don't know that it was truly a hundred percent understood exactly what she was waiving at that point because there was a lot–a lot going on with the judge asking her questions and also just conversations about the case in the hall with myself."

The trial court continued the case for a hearing on the motion. In addition, the court ordered DNA testing for Abel and Javier (who had been made aware of the court date but had failed to appear) and found Javier to be in default for shelter care purposes. The trial court also ordered Shana to provide the names of any potential fathers of Abel. The trial court subsequently denied Shana's motion to reconsider.

¶ 5 After a period for discovery and several continuances, the case was scheduled for an adjudicatory hearing on October 4, 2012. On that date, Shana filed an appearance and informed the trial court, "I want to represent myself." The trial court then granted Chostner's oral motion to withdraw and ordered him to turn over his file to Shana by October 21. Over the State's objection, the court continued the case to October 26 for status regarding counsel and October 29 for a hearing. The court advised Shana that she did not have to "give us your decision on whether or not you want to retain new counsel, or not, but if you do decide to do that, I would ask that they be here that day."

¶ 6 On October 26, Shana informed the trial court that she was going to represent herself. The trial court responded, "Okay. I guess that's your decision. I would highly encourage you to retain counsel, but we are set for adjudication on Monday, starting at 3:30, Courtroom 216. We are going to hold to that." The court further advised Shana, "Be prepared to proceed with trial that day, do you understand? Any questions?" Shana replied "No" and, when asked if she had received Chostner's file, told the court that she had to pick it up that day.

¶ 7 On October 29, the trial court recounted with Shana the history of her prior representation by Sloniker and Chostner. The following colloquy then took place:

"THE COURT: All right. Now, I think I said to you at that time, because you indicated you wished to represent yourself, that I thought you should be represented by ...

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