In re L.W.

2018 IL App (3d) 170405

• Court: Appellate Court of Illinois
• Decided: April 27, 2018
• Docket: 3-17-0405
• Status: Unpublished

Opinion

2018 IL App (3d) 170405

Opinion filed March 21, 2018 Special Concurrence filed April 25, 2018 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

In re L.W., ) Appeal from the Circuit Court ) of the 10th Judicial Circuit, a Minor ) Tazewell County, Illinois. ) (The People of the State of Illinois, ) ) Appeal No. 3-17-0405 Petitioner-Appellee, ) Circuit No. 09-JA-128 ) v. ) ) Jeremie G., ) The Honorable ) Kirk D. Schoenbein, Respondent-Appellant). ) Judge, presiding. ____________________________________________________________________________

PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion. Justice O’Brien concurred in the judgment and opinion. Justice Schmidt specially concurred, with opinion. _____________________________________________________________________________

OPINION

¶1 In the context of a juvenile neglect proceeding, respondent, Jeremie G., filed a

supplemental petition to reinstate wardship (petition) over his minor child, L.W., so that

respondent could establish that he was no longer dispositionally unfit as a parent. The State and

the Department of Children and Family Services (DCFS) opposed respondent’s petition, and the guardian ad litem (GAL) for the minor child supported the petition. After a hearing, the trial

court denied the petition. Respondent appeals. We affirm the trial court’s judgment.

¶2 FACTS

¶3 Respondent and Sonja W. were the biological parents of the minor child, L.W., who was

born in September 2007. In September 2009, the State filed a juvenile petition alleging that L.W.

was a neglected minor due to an injurious environment. After hearings were held on the petition,

the trial court found that L.W. was a neglected minor, made L.W. a ward of the court, found that

respondent was dispositionally unfit as a parent, found that Sonja W. was dispositionally fit as a

parent, and awarded guardianship of L.W. to DCFS. L.W.’s placement was kept with Sonja W.

¶4 At the first and second permanency review hearings in September 2010 and May 2011, at

which respondent did not appear, the trial court found that respondent had not made reasonable

efforts or progress due to a lack of interest and cooperation and that respondent was still unfit as

a parent. At the conclusion of the May 2011 hearing, the trial court returned guardianship of the

child to Sonja W., terminated wardship, and closed the case.

¶5 More than five years later, in December 2016, respondent filed a pro se petition to restore

his fitness as a parent. The trial court appointed an attorney for respondent. In February 2017,

respondent’s attorney filed a supplemental petition to reinstate wardship (the petition at issue in

the present case) pursuant to section 2-33(1) of the Juvenile Court Act of 1987 (Act) (705 ILCS

405/2-33(1) (West 2016)), which provided, in pertinent part, that:

“(1) Any time prior to a minor’s 18th birthday, pursuant to a supplemental

petition filed under this Section, the court may reinstate wardship and open a

previously closed case when:

2 (a) wardship and guardianship under the Juvenile Court Act of

1987 was vacated in conjunction with the appointment of a private

guardian under the Probate Act of 1975;

(b) the minor is not presently a ward of the court under Article II of

this Act nor is there a petition for adjudication of wardship pending on

behalf of the minor; and

(c) it is in the minor’s best interest that wardship be reinstated.”

705 ILCS 405/2-33(1) (West 2016).

Respondent alleged in the petition that, after warship was terminated in the present case, he had

completed several services and had put himself in a position to be found dispositionally fit as a

parent. Respondent alleged further that he had maintained his relationship with L.W., he had

continued to have regular supervised visits with L.W., and it was in L.W.’s best interest to

reinstate wardship. Respondent also sought leave to file a motion for a finding of fitness, which

respondent had attached to the petition, if the trial court granted respondent’s petition to reinstate

wardship.

¶6 The State filed a response, alleging that the trial court did not have jurisdiction to rule

upon the petition because the facts in this particular case did not comply with the requirements of

section 2-33(1)(a) of the Act. DCFS filed a motion to dismiss respondent’s petition on that same

basis. Respondent filed a memorandum of law in support of his petition.

¶7 In June 2017, a hearing was held on respondent’s petition and the various responses. At

the hearing, respondent argued in support of the petition and asked that the petition be granted.

The State and DCFS opposed the petition, and the GAL joined respondent in support of the

3 petition. Sonja W.’s attorney had not been able to make contact with Sonja W. and did not,

therefore, take a position on the matter.

¶8 After listening to the arguments of the attorneys and taking the matter under advisement

for a short period, the trial court denied respondent’s petition. As a matter of statutory

interpretation, the trial court found that all three conditions listed in section 2-33(1) of the Act

had to be satisfied before a supplemental petition to reinstate wardship could be granted. The

trial court concluded that the factual situation in the present case did not satisfy the requirements

of section 2-33(1) because wardship and guardianship in the present case had not been vacated in

conjunction with the appointment of a private guardian under the Probate Act, which was listed

as the first condition in the statute (see 705 ILCS 405/2-33(1)(a) (West 2016)). In making that

determination, the trial court relied upon the Second District Appellate Court’s decision in In re

Tr. O., 362 Ill. App. 3d 860, 866 (2005), which had reached the same conclusion in a similar

factual situation. The trial court, therefore, denied respondent’s petition and also denied

respondent’s request for leave to file his motion for fitness. As part of its ruling, the trial court

stated that its decision was final and appealable and made an Illinois Supreme Court Rule 304(a)

(eff. Mar. 8, 2016) finding that there was no just reason to delay enforcement or appeal of its

decision. Respondent brought this appeal to challenge the trial court’s ruling.

¶9 ANALYSIS

¶ 10 On appeal, respondent argues that the trial court erred in interpreting section 2-33(1) of

the Act and in denying his supplemental petition to reinstate wardship. Respondent asserts that

the trial court’s overly restrictive interpretation of the statute (1) is inconsistent with the Act as a

whole, (2) is contrary to the Act’s purpose to preserve and strengthen the minor’s family ties

whenever possible, (3) would render the statute useless, as an unfit parent would never be able to

4 establish fitness or to obtain unsupervised visitation after wardship had been terminated, and (4)

would lead to negative unintended consequences where courts would be reluctant to terminate

wardship or to make findings of parental unfitness because such rulings would leave an unfit

parent with no ability to establish fitness. Respondent contends instead that section 2-33(1) of the

Act should be read so that the first condition listed in the statute serves as one basis upon which

reinstatement of wardship may be granted and the second and third conditions listed in the

statute, taken together, serve as a second basis upon which reinstatement may be granted (that

the word “and,” between subsections (b) and (c), should be read as only applying to those two

subsections and that the word “or” should be read into the statute between subsections (a) and

(b)). In the alternative, respondent asserts that section 2-33(1) should be read so that each of the

three conditions listed in the section is considered a separate basis upon which reinstatement of

wardship may be granted (that the word “and,” between subsections (b) and (c), should actually

be read as “or”). Thus, respondent asserts that he was not required to satisfy the condition listed

in subparagraph (a) of section 2-33(1) to obtain reinstatement of wardship as to L.W. In support

of his assertion, respondent points to section 2-34 of the Act (705 ILCS 405/2-34 (West 2016)),

wherein the legislature specifically stated that all of the conditions listed in that particular statute

had to be satisfied. Respondent contends that had the legislature wanted section 2-33 to be read

in that manner, it would have used the same type of language that it had used in section 2-34. In

making his assertions on this issue, respondent contends that the Tr. O. case, upon which the trial

court relied, was incorrectly decided and should not be followed here. Respondent maintains

that, unlike the appellate court’s interpretation of the statute in Tr. O., both of his two proposed

interpretations of section 2-33(1) in the present case would be consistent with the Act and would

provide a remedy for an unfit parent to seek a finding of fitness in the event that his juvenile case

5 was closed, that he corrected the condition that led to the removal of the minor, and that he was

capable of being found fit. For all of the reasons stated, respondent asks that we reverse the trial

court’s ruling and, presumably, that we remand this case for further proceedings.

¶ 11 The State argues first that this court lacks jurisdiction to hear this appeal and that this

appeal should be dismissed. The State asserts that appellate jurisdiction is lacking because

respondent did not file his pro se petition for fitness or a notice of appeal within 30 days after the

trial court entered its final order in May 2011 terminating wardship and closing the case (see

In re C.S., 294 Ill. App. 3d 780, 786-87 (1998)). Second, and in the alternative, the State argues

that if this court has jurisdiction to hear this appeal, the trial court’s ruling was proper and should

be upheld. In support of that argument, the State asserts that section 2-33(1) of the Act clearly

and unambiguously requires that all three conditions listed in the statute must be satisfied before

a supplemental petition to reinstate wardship may be granted. The State asserts further that, as

the trial court correctly found, respondent was unable to satisfy the first condition because this

case did not involve the appointment of a guardian under the Probate Act. According to the State,

the Second District Appellate Court’s decision in the Tr. O. case is directly on point and should

be followed here. Furthermore, the State contends that respondent’s assertion regarding possible

negative unintended consequences is purely speculative and does not justify ignoring the plain

language of the statute and that respondent’s remaining assertions on this issue are better directed

to the legislature, rather than to the court. For all of the reasons set forth, the State asks first that

we dismiss this appeal for lack of jurisdiction and, second, and in the alternative, that we affirm

the trial court’s judgment.

¶ 12 I. Appellate Jurisdiction

6 ¶ 13 Before we address the merits of the parties’ arguments on appeal, we must first address

the State’s contention that appellate jurisdiction is lacking in this case and that this appeal must

be dismissed. Although it is well-settled that an appeal must be dismissed if appellate jurisdiction

is lacking (see Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984)), we do not

believe that appellate jurisdiction is lacking in the present case. Contrary to the State’s

contention, the time-limits that apply to the filing of a post-judgment motion do not apply to a

section 2-33(1) petition because, pursuant to the statue, such a petition may be filed any time

prior to the minor’s 18th birthday. See 705 ILCS 405/2-33(1) (West 2016). Under our reading of

the plain language of the statute, once a section 2-33(1) petition is filed, the trial court has

authority and jurisdiction to consider reinstating wardship. See In re T.W., 352 Ill. App. 3d 1208,

1213 (2004). To the extent that the Second District Appellate Court took a different position on

jurisdiction in the Tr. O. case (see Tr. O., 362 Ill. App. 3d at 865-66), we disagree with that

conclusion. Furthermore, although permanency-type orders are typically not final and

appealable, the trial court order that was appealed from in the present case was permanent in

nature and had the characteristics of a final and appealable order. See In re Faith B., 216 Ill. 2d

1, 16-18 (2005) (finding that under the facts of that particular case, the permanency order entered

by the trial court was a final and appealable order). We conclude, therefore, that appellate

jurisdiction is not lacking in this case since respondent’s notice of appeal was timely filed within

30 days after the trial court entered its order denying respondent’s section 2-33(1) petition. See

Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303(a)(1) (eff. July 1, 2017); Archer Daniels Midland

Co., 103 Ill. 2d at 538 (the filing of a timely notice of appeal vests the appellate court with

jurisdiction); T.W., 352 Ill. App. 3d at 1213; Faith B., 216 Ill. 2d at 16-18. Having found that

7 appellate jurisdiction exists in this case, we now turn to the merits of the parties’ statutory

interpretation arguments.

¶ 14 II. Interpretation of Section 2-33(1) of the Act

¶ 15 The interpretation of a statute is a question of law and is subject to de novo review on

appeal. In re M.M., 2016 IL 119932, ¶ 15. The fundamental rule of statutory construction is to

ascertain and give effect to the intent of the legislature. Id. ¶ 16. The most reliable indicator of

that intent is the plain and ordinary meaning of the language of the statute itself. Id. In

determining the plain meaning of statutory terms, a court should consider the statute in its

entirety and keep in mind the subject the statute addresses and the apparent intent of the

legislature in enacting the statute. Id.; 5 ILCS 70/1.01 (West 2016) (in construing a statute, “[a]ll

general provisions, terms, phrases and expressions shall be liberally construed in order that the

true intent and meaning of the General Assembly may be fully carried out”). If the statutory

language is clear and unambiguous, it must be applied as written, without resorting to further

aids of statutory construction. Gaffney v. Board of Trustees of the Orland Fire Protection

District, 2012 IL 110012, ¶ 56. A court may not depart from the plain language of the statute and

read into it exceptions, limitations, or conditions that are not consistent with the express

legislative intent. Id. However, if the language of a statute is ambiguous in that it is susceptible to

more than one reasonable interpretation, a court may consider extrinsic aids to determine the

meaning of the statutory language. See Williams v. Illinois State Scholarship Comm’n, 139 Ill. 2d

24, 51 (1990).

¶ 16 The statute at issue in the present case is section 2-33 of the Act, which, in pertinent part,

provides as follows:

Ҥ 2-33. Supplemental petition to reinstate wardship.

8 (1) Any time prior to a minor’s 18th birthday, pursuant to a supplemental

petition filed under this Section, the court may reinstate wardship and open a

(a) wardship and guardianship under the Juvenile Court Act of

1987 was vacated in conjunction with the appointment of a private

(b) the minor is not presently a ward of the court under Article II of

this Act nor is there a petition for adjudication of wardship pending on

(c) it is in the minor’s best interest that wardship be reinstated.

(2) Any time prior to a minor’s 21st birthday, pursuant to a supplemental

petition filed under this Section, the court may reinstate wardship and open a

(a) wardship and guardianship under this Act was vacated pursuant

to:

(i) an order entered under subsection (2) of Section 2-31 in

the case of a minor over the age of 18;

(ii) closure of a case under subsection (2) of Section 2-31 in

the case of a minor under the age of 18 who has been partially or

completely emancipated in accordance with the Emancipation of

Minors Act; or

(iii) an order entered under subsection (3) of Section 2-31

based on the minor’s attaining the age of 19 years;

9 (b) the minor is not presently a ward of the court under Article II of

this Act nor is there a petition for adjudication of wardship pending on

(c) it is in the minor’s best interest that wardship be reinstated.

(3) The supplemental petition must be filed in the same proceeding in

which the original adjudication order was entered.” 705 ILCS 405/2-33 (West

2016).

¶ 17 In the Tr. O. case, the Second District Appellate Court found that the statutory language

of section 2-33(1) of the Act was clear and that, as a matter of statutory interpretation, all three of

the conditions listed in section 2-33(1) had to be satisfied before a supplemental petition to

reinstate wardship could be granted. Tr. O., 362 Ill. App. 3d at 866. In reaching that conclusion,

the Second District Appellate Court noted that the legislature had plainly limited the application

of section 2-33(1) to situations where wardship and guardianship under the Act were vacated in

conjunction with the appointment of a private guardian under the Probate Act of 1975 (755 ILCS

5/1-1 et seq. (West 2016)). See Tr. O., 362 Ill. App. 3d at 866.

¶ 18 Although, as noted above, we do not agree with the Second District Appellate Court’s

statement in Tr. O. regarding jurisdiction as it relates to section 2-33(1), we do agree with the

Second District’s interpretation of the conditions portion of the statute. We find, therefore, as did

the Second District Appellate Court in Tr. O., that all three conditions listed in section 2-33(1) of

the Act must be satisfied before a supplemental petition for reinstatement of wardship may be

granted. See 705 ILCS 405/2-33(1) (West 2016); Tr. O., 362 Ill. App. 3d at 866. In addition to

the plain language of section 2-33(1) and the appellate court’s decision in Tr. O., our

interpretation of the statute is further supported by the fact that the legislature used both the

10 words “and” and “or” in section 2-33(2) of the Act (see 705 ILCS 405/2-33(2) (West 2016)),

thus, clearly showing that the legislature intended to use the word “and” when it did so in section

2-33(1). Applying that interpretation to the facts at hand, we find that respondent’s supplemental

petition to reinstate wardship was properly denied because the factual situation failed to satisfy

the first condition listed in the statute—that wardship and guardianship under the Act were

vacated in conjunction with the appointment of a private guardian under the Probate Act of 1975.

See 705 ILCS 405/2-33(1) (West 2016); Tr. O., 362 Ill. App. 3d at 866.

¶ 19 We are not persuaded to reach a different conclusion in this case based upon the proposed

interpretations of section 2-33(1) that respondent suggests. Indeed, as our supreme court has

pointed out, the use of the conjunctive “and” generally indicates that the legislature intended that

all of the listed conditions or requirements in a statute be satisfied. M.M., 2016 IL 119932, ¶ 21.

Nor do we believe that any additional insight is gained by considering the language the

legislature used in section 2-34 of the Act, when the legislature clearly demonstrated in section

2-33 that it had stated “and” when it meant “and” and that had it stated “or” when it meant “or.”

Furthermore, we believe that respondent’s remaining concerns regarding possible unintended

negative consequences and whether a person in respondent’s position lacks a remedy to establish

fitness are more appropriately directed to the legislature, rather than to this court.

¶ 20 CONCLUSION

¶ 21 For the foregoing reasons, we affirm the judgment of the circuit court of Tazewell

County.

¶ 22 Affirmed.

¶ 23 JUSTICE SCHMIDT, specially concurring:

11 ¶ 24 While I concur, I write separately to address respondent’s contention that the procedure

utilized in this case terminated his parental rights for all fundamental purposes. It did not.

Pursuant to section 1-3(13) of the Act (705 ILCS 405/1-3(13) (West 2016)), respondent

continues to have residual parental rights and responsibilities over L.W. As his parental rights

were not terminated, nothing prevents him from seeking unsupervised visitation or custody by

filing a petition for allocation of parental responsibilities under the Illinois Marriage and

Dissolution of Marriage Act. See 750 ILCS 5/601.2 (b) (West 2016).