2018 IL App (3d) 170405
Ill. App. Ct.2018Background
- L.W., born 2007, was adjudicated neglected in 2009; court made L.W. a ward, found father (Jeremie G.) dispositionally unfit and mother fit, and placed guardianship with DCFS while child stayed with mother.
- In May 2011 the court returned guardianship to Mother, terminated wardship, and closed the juvenile case after finding Father had not participated.
- In December 2016 Father filed a pro se petition to restore parental fitness; in February 2017 he filed a supplemental petition under 705 ILCS 405/2-33(1) seeking reinstatement of wardship so he could obtain a finding of fitness.
- The State and DCFS opposed, arguing section 2-33(1) applies only where prior wardship was vacated in conjunction with appointment of a private guardian under the Probate Act; the guardian ad litem supported Father.
- Trial court denied the petition, concluding all three subsection conditions of 2-33(1) are conjunctive and Father’s case did not meet subsection (a); Father appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate jurisdiction exists over denial of a 705 ILCS 405/2-33(1) petition filed after case closure | Father: statute allows filing any time before minor's 18th birthday; trial court had jurisdiction and appeal is timely | State: appeal jurisdiction lacking because Father did not file postjudgment motion/appeal within 30 days after 2011 closure | Court: appellate jurisdiction exists; 2-33(1) petition may be filed any time before child turns 18 and Father’s notice of appeal was timely |
| Construction of 705 ILCS 405/2-33(1): whether all three subsections (a),(b),(c) are conjunctive or alternative bases for reinstatement | Father: subsections should be read disjunctively (or mixed), so subsection (a) is not required; statute should allow other bases to reinstate wardship | State: plain language requires satisfying all three subsections; Tr. O. supports conjunctive reading | Court: affirmed conjunctive reading — all three conditions must be met; Father failed subsection (a), so petition properly denied |
| Whether Tr. O. (362 Ill. App. 3d 860) should be followed | Father: Tr. O. was wrongly decided; legislature intended broader relief | State: Tr. O. is on point and controlling persuasive authority | Court: Agreed with Tr. O. on statutory interpretation and followed it; disagreed only with Tr. O. on jurisdictional point |
| Whether denial of petition eliminated Father’s residual parental rights | Father: argued procedure effectively foreclosed establishing fitness | State/DCFS: not asserted as primary issue | Court: noted in concurrence that Father retained residual parental rights and could seek allocation of parental responsibilities under other statutes |
Key Cases Cited
- In re Tr. O., 362 Ill. App. 3d 860 (Ill. App. Ct. 2005) (interpreting §2-33(1) as requiring all listed conditions be satisfied)
- In re T.W., 352 Ill. App. 3d 1208 (Ill. App. Ct. 2004) (section 2-33 petitions grant trial court authority to consider reinstatement)
- In re Faith B., 216 Ill. 2d 1 (Ill. 2005) (permanency-type orders may be final and appealable under certain facts)
- Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536 (Ill. 1984) (timely notice of appeal vests appellate court with jurisdiction)
- In re C.S., 294 Ill. App. 3d 780 (Ill. App. Ct. 1998) (discussing timeliness of appeals from juvenile orders)
- In re M.M., 2016 IL 119932 (Ill. 2016) (statutory construction principles; conjunctive "and" generally means all conditions must be met)