In re R.W. , 371 Ill. App. 3d 1171 ( 2007 )

No. 3--06--0282
_________________________________________________________________
Filed March 27, 2007.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
In re R.W. and S.W., ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
Minors ) Peoria County, Illinois,
)
(The People of the State of )
Illinois, )
) Nos. 05--JA--129 and
Petitioner-Appellee, ) 05--JA--130
)
v. )
)
Melvin W., ) Honorable
) David J. Dubicki,
Respondent-Appellant). ) Judge, Presiding.
_________________________________________________________________
JUSTICE McDADE delivered the opinion of the court:
_________________________________________________________________
The respondent, Melvin W., is the father of the minor
children R.W. and S.W. At the time the State filed its juvenile
petition alleging that the minors were neglected, the respondent
was not living with the children and their mother. The trial
court adjudicated the minors to be neglected because of an
injurious environment and placed them in the care of the
Department of Children and Family Services (DCFS). During a
dispositional hearing, the respondent sought custody of the
children. The court orally announced that it was reserving the
issue of respondent's fitness. The court's written dispositional
order, however, stated that the respondent was "fit but
reserved." The court denied the respondent's request for custody
of his children.
On appeal, the respondent argues that the trial court erred
by (1) denying him custody of the children when it had found him
to be fit; and (2) finding that it was in the children's best
interest to remain in DCFS custody. We affirm and remand with
directions.
BACKGROUND
On June 9, 2005, the State filed two nearly identical
juvenile petitions alleging that R.W. and S.W. were neglected
because of an injurious environment. The petition stated that
the children's mother had left them alone and unsupervised on
several occasions. Although the petition named the respondent as
the father, none of the allegations referred to his conduct.
On September 28, 2005 the court adjudicated the children to
be neglected, and entered an order of default against the
respondent. On that date, the court also issued a dispositional
order in which it found the mother to be unfit, but made no
ruling with regard to the respondent because it found his
paternity at that time to be putative. In the September 28
dispositional order, the court made the children wards of the
court and named DCFS as their guardian.
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Later, the respondent voluntarily acknowledged paternity of
the minors. The court then granted the respondent's motion to
vacate his default. Consequently, the court held a second
dispositional hearing regarding the respondent on March 21, 2006,
and April 11, 2006. At the conclusion of the April 11
proceeding, the judge said with regard to the respondent,
"I will reserve his fitness.
Now, in terms of placement, I'm going to again
keep DCFS as the guardian. Let me say I don't believe
this is an issue under 227 even though I found him fit
but reserved."
The court issued its written dispositional order that same day.
In the order the court stated that the respondent was "fit but
reserved." In the April 11 order, the court reiterated that the
children were wards of the court and that DCFS was their
guardian. The respondent appealed.
ANALYSIS
The respondent contends that the trial court erred by
denying him custody of the children when it had found him to be
fit.
Once a trial court adjudicates a child to be neglected, the
court shall hold a dispositional hearing. 705 ILCS 405/2--21(2)
(West 2004). If the child is made a ward of the court at the
dispositional hearing, the court shall determine the proper
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disposition. 705 ILCS 405/2--22(1) (West 2004). If the child
was found neglected, the court shall not return the child to the
custody of the parent until the court enters an order finding the
parent to be fit to care for the child. 705 ILCS 405/2--23(1)(a)
(West 2004). If the court determines that the parent is unfit to
care for the child, the court may commit the child to the care of
DCFS. 705 ILCS 405/2--27(1)(d) (West 2004). At the
dispositional phase, the trial court may reserve the issue of a
respondent's fitness. See In re E.L., 353 Ill. App. 3d 894, 819
N.E.2d 1191 (2004).
When a trial court's oral pronouncement is in conflict with
its written order, the oral pronouncement prevails. In re Taylor
B., 359 Ill. App. 3d 647, 834 N.E.2d 605 (2005). A trial court's
disposition that is not authorized by statute is void. In re
D.W., 214 Ill. 2d 289, 827 N.E.2d 466 (2005).
In the present case, the preliminary issue is whether the
trial court found the respondent to be fit, as the respondent
asserts. The respondent contends that the court found him fit
because its disposition was that he was "fit but reserved." This
is a question of law, which we review de novo. See In re Taylor
D., 368 Ill. App. 3d 854, 858 N.E.2d 961 (2006).
In this case, the trial court's initial oral pronouncement
was that the issue of respondent's fitness was reserved. Later,
the court orally stated that it had found the respondent fit but
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reserved. In the written dispositional order, the court stated
that it found the respondent fit but reserved.
First, we note that the statutes concerning the
dispositional phase of juvenile proceedings do not authorize a
finding of "fit but reserved." The statutes only speak of a
finding of fitness or unfitness. See 705 ILCS 405/2--23(1)(a),
2--27(1)(d) (West 2004). Thus, the court's oral pronouncement
and written order stating that the respondent was "fit but
reserved" are void. See D.W., 214 Ill. 2d 289, 827 N.E.2d 466.
The court's oral pronouncement that it was reserving the
issue of respondent's fitness was a valid determination by the
court. See E.L., 353 Ill. App. 3d 894, 819 N.E.2d 1191. This
oral pronouncement took precedence over the court's written order
that the respondent was "fit but reserved." See Taylor B., 359
Ill. App. 3d 647, 834 N.E.2d 605. Thus, the trial court reserved
the matter of the respondent's fitness. We hold, therefore, that
the respondent is incorrect as a matter of law that the trial
court found him to be fit.
Because the trial court reserved the matter of the
respondent's fitness, we need not consider the respondent's
argument concerning whether it was in the best interest of the
children to continue in the custody of DCFS. The court may not
resolve the question of whether the respondent may have custody
of the children until it determines whether the respondent is fit
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or unfit. See 705 ILCS 405/2--23(1)(a), 2--27(1)(d) (West 2004).
Consequently, we remand the matter for the trial court to
determine whether the respondent is dispositionally fit or unfit,
and for further proceedings consistent with this order.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
Peoria County circuit court and remand the cause with directions.
Affirmed and remanded with directions.
HOLDRIDGE and CARTER, JJ., concur.
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