People v. P.K.

871 N.E.2d 939, 374 Ill. App. 3d 795, 313 Ill. Dec. 212, 2007 Ill. App. LEXIS 751
CourtAppellate Court of Illinois
DecidedJuly 5, 2007
Docket2-06-0902 Rel
StatusPublished

This text of 871 N.E.2d 939 (People v. P.K.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. P.K., 871 N.E.2d 939, 374 Ill. App. 3d 795, 313 Ill. Dec. 212, 2007 Ill. App. LEXIS 751 (Ill. Ct. App. 2007).

Opinion

JUSTICE McLAREN

delivered the opinion of the court:

Petitioner, the People of the State of Illinois (State), appeals from the trial court’s order dismissing the State’s neglect and dependency petitions and returning custody of the minor child to respondents, PK. and S.K. We affirm.

On March 12, 2006, PK. and S.K. were arrested in Cook County. Their daughter, Niki, was with them at the time of arrest. Respondents told the police that the child could be placed with her maternal grandmother, Doris, who did take custody of her. Doris stated that she could not take care of the child “for a long period of time.” Officers told her that it would just be overnight because respondents would be out of jail the next day. On March 20, Doris took Niki to stay with a cousin. On March 23, both Doris and the cousin took Niki to the Addison police department and surrendered her, claiming that neither they nor any other family members could take care of the minor. An aunt was approached about taking custody, but she refused.

A shelter care hearing was held in the afternoon of March 23. Neither parent was present, as they both remained in custody, and “numerous attempts” to reach them in the Cook County jail were unsuccessful. The minor was placed in shelter care, with temporary custody granted to the Department of Children and Family Services (DCFS) Guardianship Administrator. The State filed a petition seeking findings of neglect and dependency, early termination of reasonable efforts to reunify the family, and termination of parental rights.

On April 3, a renewal hearing was held, at which time the prior temporary custody order was renewed and the cause was continued for answer and setting. The case was continued several more times for answer and setting until July 25. On that date, respondents entered their answers and moved for rehearing on temporary custody, pursuant to section 2 — 10(4) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2 — 10(4) (West 2004)), alleging that they had not received notice of and were not present at the March 23 shelter care hearing. The court granted the motion and set the rehearing for the following day. Respondents then moved for a substitution of judge, which was granted. The rehearing was held on July 26, and the court found “no probable cause and no immediate and urgent necessity” and dismissed the case.

The State then filed a motion to reconsider. In denying that motion, the trial court noted that the original temporary custody order, entered March 23, was not renewed in a timely manner, and there was no valid order at the time of the rehearing in July. In addition, the court reiterated its conclusion that there was no probable cause. The court denied the motion to reconsider, and this appeal followed.

The State first contends that the trial court erred in determining that the initial shelter care order was not renewed on a timely basis. A shelter care order from an ex parte hearing “shall expire after 10 days from the time it is issued unless before its expiration it is renewed” at a hearing at which the party respondent appears or the moving party provides an affidavit as to diligent efforts to notify the party respondent. 705 ILCS 405/2 — 10(3) (West 2004). The shelter care order was entered on March 23, 2006, and the cause was continued to Monday, April 3, 11 days later. On that date, a renewal order was entered.

In computing the time within which “any act provided by law is to be done,” the last day is to be excluded if it falls on a Saturday or a Sunday. (Emphasis added.) 5 ILCS 70/1.11 (West 2004). In this case, the tenth day, April 2, fell on a Sunday; thus, excluding April 2, the hearing was to be held by Monday, April 3. As the hearing was held on that date, the shelter care order was properly and timely renewed on April 3. The trial court erred in determining that there was no valid shelter care order in existence in July.

The State next contends that the trial court erred in considering evidence up to the time of the rehearing. Our review of the testimony, however, discloses no evidence regarding anything that occurred after the hearing held on March 23. The only “evidence” that was different from that of the original hearing was the presence of the parents, who were no longer in the Cook County jail. The State does not specify what evidence it alleges to have been improperly considered. Thus, we must conclude that the State objects to the trial court’s consideration of the fact that the parents were no longer in the custody of Cook County.

Section 2 — 10(4) of the Act provides in relevant part:

“If the parent *** of the minor did not have actual notice of or was not present at the shelter care hearing, he or she may file an affidavit setting forth these facts, and the clerk shall set the matter for rehearing not later than 48 hours, excluding Sundays and legal holidays, after the filing of the affidavit. At the rehearing, the court shall proceed in the same manner as upon the original hearing.” 705 ILCS 405/2 — 10(4) (West 2004).

The State argues that the clause “the court shall proceed in the same manner as upon the original hearing” requires the court to consider only evidence that could have been considered at the original shelter care hearing. We review de novo issues of statutory construction. In re C.W., 199 Ill. 2d 198, 211 (2002).

A court’s primary objective in construing a statute is to give effect to the intent of the legislature. C.W., 199 Ill. 2d at 211. The language of the statute is the most reliable indicator of the legislature’s intent; where the statutory language is clear and unambiguous, we need not resort to other aids of construction. C.W., 199 Ill. 2d at 211. In such a situation, we “must give effect to the statute as written, without reading into it exceptions, limitations, or conditions that the legislature did not express.” C.W., 199 Ill. 2d at 211-12.

Here, the Act provides that parents who did not receive notice of a shelter care hearing are entitled to a rehearing. Such parents are to be given notice of their rights to a rehearing; the form of the notice, which shall be given “substantially” as it is explicitly set forth in section 2 — 10(3) of the Act, includes a statement that the parents’ rights “are the same as at the initial shelter care hearing.” 705 ILCS 405/ 2 — 10(3) (West 2004)). Among the rights of parents at a shelter care hearing is the right to present evidence concerning: (1) whether a child is abused, neglected, or dependent; (2) whether there is immediate and urgent necessity to remove a child from the home, including evidence of the parents’ ability to care for the child, conditions in the home, and alternative means of protecting the child other than removal; and (3) the best interests of the child. See 705 ILCS 405/2— 10(3) (West 2004). At the rehearing, the court is to “proceed in the same manner as upon the original hearing.” 705 ILCS 405/2

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Cite This Page — Counsel Stack

Bluebook (online)
871 N.E.2d 939, 374 Ill. App. 3d 795, 313 Ill. Dec. 212, 2007 Ill. App. LEXIS 751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-pk-illappct-2007.