In re S.B.

2015 IL App (4th) 150260

• Court: Appellate Court of Illinois
• Decided: August 24, 2015
• Docket: 4-15-0260, 4-15-0261, 4-15-0262 cons.
• Status: Unpublished

Opinion

2015 IL App (4th) 150260 FILED August 24, 2015 Carla Bender NOS. 4-15-0260, 4-15-0261, 4-15-0262, cons. 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: S.B., a Minor, ) Appeal from THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of Petitioner-Appellee, ) Adams County v. (No. 4-15-0260) ) No. 14JA04 TARA A. BULLOCK, ) Respondent-Appellant. ) Honorable ) John C. Wooleyhan, ) Judge Presiding.

THE PEOPLE OF THE STATE OF ILLINOIS, ) No. 14JA05 Petitioner-Appellee, ) v. (No. 4-15-0261) ) TARA A. BULLOCK, ) Respondent-Appellant. ) ) ) _______________________________________________ ) ) In re: I.B., a Minor, ) No. 14JA06 THE PEOPLE OF THE STATE OF ILLINOIS, ) Petitioner-Appellee, ) v. (No. 4-15-0262) ) TARA A. BULLOCK, ) Respondent-Appellant. ) ) ) ______________________________________________________________________________

JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Harris and Holder White concurred in the judgment and opinion.

OPINION ¶1 Respondent, Tara A. Bullock, is the mother of three children: S.B., born

December 15, 2008; E.B., born November 16, 2009; and I.B., born November 23, 2010. In these

consolidated appeals, respondent challenges adjudicatory orders in which the trial court found

the children to be neglected and dispositional orders in which the court made them wards of the

court. Her only argument is that the court violated her right to due process by proceeding with

the adjudicatory and dispositional hearings in her absence instead of awaiting her arrival from

prison.

¶2 The denial of a continuance, even if erroneous, presents no question of due

process. But the denial of a continuance, in the circumstances of this case, was indeed

erroneous, an abuse of discretion. Therefore, we reverse the trial court's judgment in Adams

County case Nos. 14-JA-04, 14-JA-05, and 14-JA-06, and we remand those cases for a new

adjudicatory hearing.

¶3 I. BACKGROUND

¶4 A. The State's Petitions To Adjudicate the Children To Be Neglected Minors and To Make Them Wards of the Court

¶5 On March 10, 2014, the State filed petitions to adjudicate the children to be

neglected minors and to make them wards of the court. Each of the petitions included the

following allegation:

"e. On March 6, 2014, Mother was arrested for

methamphetamine possession and production. Mother admitted to

[the child protection investigator] that she and Father had used

methamphetamine on March 6, 2014[,] at 4:00 A.M. Mother

admitted to assuming parental responsibility of her children again

at 7:30 A.M. Father ran from the home and has not yet been

-2- arrested. Mother further admitted to using and [sic]

methamphetamine since September of 2013 and admitted that she

has purchased products for the production of methamphetamine,

including pseudoephedrine pills."

¶6 The petitions also alleged that the father, Joseph Bullock, had been arrested for

domestic battery. He had "punched [respondent] in the face and hit her in the head with a stick,"

according to the petitions.

¶7 B. The Adjudicatory Hearing

¶8 On January 22, 2015, the trial court issued to the warden of Logan Correctional

Center a writ of habeas corpus ad prosequendum, requiring the warden to bring respondent to

the Adams County courthouse on February 26, 2015, at 9 a.m. An adjudicatory hearing was

scheduled for that time.

¶9 There was heavy snowfall the evening of February 25, 2015, through the early

morning of February 26, 2015, and the roads between Lincoln and Quincy were covered with

snow. The transport vehicle left Logan Correctional Center at 6:35 a.m. on February 26, 2015.

¶ 10 At 9 a.m. on February 26, 2015, the cases were called for an adjudicatory hearing

and a dispositional hearing. The father, Joseph Bullock, appeared, along with his attorney, Holly

J. Henze. E. John Clark appeared on behalf of the minors. Respondent did not personally

appear, but her attorney, Betsy Bier, appeared.

¶ 11 When it was apparent that the Illinois Department of Corrections was

significantly late, the assistant State's Attorney, Joshua Jones, telephoned Logan Correctional

Center to obtain an estimated time of arrival. The staff there was unable to provide any

information about the location of the transport vehicle or the expected time of arrival.

-3- ¶ 12 At 9:35 a.m., the vehicle from Logan County Correctional Center still had not

arrived, and the trial court called the cases for hearing. At the beginning of the adjudicatory

hearing, Jones told the court it was his understanding that the father would admit the allegations

of the petition. Henze confirmed that the father intended to do so. The court then asked Bier if

she would be presenting any evidence. She responded:

"M[S]. BIER: Your Honor, I would make an objection to

proceeding in that fashion. My client is now in the Department of

Corrections. Our information is that the Department is

transporting her pursuant to a writ. They left at 6:30 this morning,

and I don't know what our snowfall was last night, but it was

several, and I don't know what the conditions of the roads are, so

I'm assuming that's why they might be late. But as far as anything

regarding my client, I would object to proceeding in that fashion

until she arrives.

THE COURT: Any position on that, Mr. Jones?

MR. JONES: We would ask to proceed, Your Honor.

THE COURT: The record shows that this cause has been

set for some length of time for today's hearing. The petition was

first filed March 2014, a year ago, so it probably would be in the

best interests of the minors to proceed today if we can."

So, the court continued on with the adjudicatory hearing, admonishing the father on his proposed

admission of the petitions—an admission the court ultimately accepted.

-4- ¶ 13 In the adjudicatory orders, which the trial court entered in the three cases on

February 26, 2015, the court found the children to be neglected. The stated reasons for this

finding were as follows: "Father admits the petition. Mother has pled guilty in 14CF153 to basis

for ¶ (e) of petition." (On June 16, 2015, we allowed the State's motion to supplement the record

with the amended information, the plea order, and the sentencing order in People v. Bullock,

Adams County case No. 14-CF-153. These documents show that on December 18, 2014,

respondent entered a negotiated plea of guilty to unlawful possession of methamphetamine (720

ILCS 646/60(b)(1) (West 2014)), and the court sentenced her to imprisonment for three years.)

¶ 14 Immediately after the adjudicatory hearing, the trial court proceeded to a

dispositional hearing. The court asked Bier if she had received a copy of the dispositional report

by the Illinois Department of Children and Family Services (DCFS). She answered:

"MS. BIER: I have received that, Your Honor.

For the record, I do object to proceeding to dispositional

without the presence of my client and in light of the—the

proceedings today.

THE COURT: For the reasons previously stated, and under

the provisions of the Juvenile Court Act, it does appear it would be

in the best interests of the minors to proceed today with the

dispositional hearing."

¶ 15 The dispositional report stated:

"Tara is currently lodged in the Department of Corrections

in the Logan Correctional Center. Tara was admitted into Logan

Correctional Center on January 8, 2015. Her projected parole date

-5- is June 20, 2015. She was sentenced to three years in the

Department of Corrections for Class III felony of Possession of

Meth < 5 Grams in Case # 14CF153."

The trial court asked Bier:

"THE COURT: ***

And, Miss Bier, the report talks about criminal charges that

the mother was facing and has now been sentenced to the

Department of Corrections. Is that right?

MS. BIER: That's correct, Your Honor.

THE COURT: And do you know what the length of her

sentence was?

MS. BIER: I do. It was three years, but her anticipated

discharge date at this time is June 20th of this year."

¶ 16 None of the parties had any additional evidence, beyond the dispositional report.

The trial court entered a dispositional order making the children wards of the court and awarding

guardianship and custody of them to the guardianship administrator of DCFS.

¶ 17 The trial court recessed, and the parties and counsel left the courtroom.

¶ 18 A few minutes later, at approximately 9:36 a.m., the officers from Logan County

Correctional center entered the courthouse, with respondent in their custody. They entered the

courtroom at approximately 9:50 a.m. But the other parties and their attorneys had already left.

¶ 19 II. ANALYSIS

¶ 20 Respondent's counsel effectively moved for a continuance when she objected to

going forward with the adjudicatory and dispositional hearings before respondent arrived. The

-6- trial court refused to await respondent's arrival, effectively denying the motion for a continuance.

Respondent argues that by going forward with the hearings in her absence, the court violated her

constitutional right to due process. See U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 2.

In support of that argument, she cites, among other authorities, In re M.R., 316 Ill. App. 3d 399

(2000), and In re C.J., 272 Ill. App. 3d 461 (1995), in which the appellate court weighed the

three factors in Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), against each other to decide

whether the denial of a continuance violated the parent's right to procedural due process in a

proceeding to terminate parental rights (M.R., 316 Ill. App. 3d at 402-03; C.J., 272 Ill. App. 3d at

465-66).

¶ 21 The due-process analysis in M.R. and C.J. is misplaced because the supreme court

has held, without qualification: "The sole question relating to the denial of [a] motion for a

continuance is whether or not the trial court erred in its exercise of judicial discretion. Due

process is in no wise involved." Benton v. Marr, 364 Ill. 628, 630 (1936). A long line of cases

has held that the denial of a motion for a continuance presents no due-process issue. See Peoples

Gas Light & Coke Co. v. Buckles, 24 Ill. 2d 520, 530 (1962); Chicago Land Clearance Comm'n

v. Darrow, 12 Ill. 2d 365, 369 (1957); Benton, 364 Ill. at 630; McDermott v. Metropolitan

Sanitary District, 240 Ill. App. 3d 1, 40 (1992); Mireles v. Indiana Harbor Belt R.R. Corp., 154

Ill. App. 3d 547, 553 (1987); Meyerson v. Software Club of America, Inc., 142 Ill. App. 3d 87, 92

(1986); Grant, Schon, Wise & Grant, P.C. v. R.W. Borrowdale Co., 114 Ill. App. 3d 89, 93

(1983); City of Chicago v. Southgate Corp., 86 Ill. App. 3d 56, 58 (1980); Moore v. McDaniel,

48 Ill. App. 3d 152, 164 (1977). It is true that all those cases involved an interest in property

whereas the present case involves a liberty interest: respondent's "liberty interest *** in the care,

custody, and control of [her] children." Troxel v. Granville, 530 U.S. 57, 65 (2000).

-7- Nevertheless, the due-process clauses of the federal and Illinois constitutions apply just as much

to deprivations of property as to deprivations of liberty. "No person shall be deprived of life,

liberty or property without due process of law ***." Ill. Const. 1970, art. I, § 2. "[N]or shall any

State deprive any person of life, liberty, or property, without due process of law ***." U.S.

Const., amend. XIV. If, in a case contemplating the deprivation of property, the denial of a

continuance presents no due-process issue, the same must be true in a case contemplating the

deprivation of liberty, since the due-process clauses, by their terms, protect the right to property

as much as the right to liberty, without discriminating between the two rights.

¶ 22 In deciding this constitutional issue, we are mindful of the supreme court's

exhortation to decide a case on nonconstitutional grounds whenever possible. In re E.H., 224 Ill.

2d 172, 178 (2006). Because the constitutional argument, however, is the only argument

respondent makes in her brief, we feel obliged to address it.

¶ 23 Although the constitutional argument is unconvincing, given the many cases

holding that the denial of a continuance in no way implicates due process, we conclude it was

unjust, and therefore an abuse of discretion, to deny a continuance in the circumstances of this

case. We realize respondent does not argue abuse of discretion in her brief. Even so, forfeiture

"is a limitation on the parties and not on this court[,] and we may address an issue to carry out

our responsibility to reach a just result." Village of Posen, Illinois v. Illinois Fraternal Order of

Police Labor Council, 2014 IL App (1st) 133329, ¶ 52. Here is why our sense of injustice is

aroused. Respondent's right to the custody and care of her children was at stake. The trial court

was informed she was en route to the courthouse. Correctional officers were driving her there.

The trip merely was taking longer than usual because of heavy snowfall. Respondent had no

control over the weather. Nor did she have any control over the time schedule of the Illinois

-8- Department of Corrections. Refusing to grant a continuance to await her apparently imminent

arrival was unreasonable.

¶ 24 Granted, under Illinois Supreme Court Rule 231(a) (eff. Jan. 1, 1970), a motion

for a continuance because of the absence of a material witness has to be supported by an affidavit

stating, among other things, "of what particular fact or facts the evidence consists." See also

Mikarovski v. Wesson, 142 Ill. App. 3d 193, 196 (1986) ("Under the circumstances of this case,

where the trial court was not apprised of the nature of the proposed testimony, we conclude that

the trial court did not abuse its discretion in denying the motion for continuance."). Respondent's

attorney submitted no such affidavit. The appellate court, however, has been willing to dispense

with an affidavit in some cases. See Jack v. Pugeda, 184 Ill. App. 3d 66, 76 (1989); Rutzen v.

Pertile, 172 Ill. App. 3d 968, 974 (1988). Regardless of the materiality of the expected

testimony, which an affidavit would show, a trial court can grant a continuance if one is

"necessary" "for the furtherance of justice." Ill. S. Ct. R. 231(b) (eff. Jan. 1, 1970). "While

broad discretion is conferred upon the trial court, that discretion must be exercised judiciously,

not arbitrarily or capriciously, and a court should not refuse a continuance when the ends of

justice clearly require it." Nixon v. Harris, 31 Ill. App. 3d 204, 209 (1975). The ends of justice

clearly required a continuance in this case.

¶ 25 III. CONCLUSION

¶ 26 For the foregoing reasons, we reverse the trial court's judgment in the three cases,

and we remand them for a new adjudicatory hearing.

¶ 27 Reversed and remanded.

-9-