In re V.Z. , 287 Ill. App. 3d 552 ( 1997 )

THIRD DIVISION
March 31, 1997
No. 1-95-3020
IN THE INTEREST OF: )
)
V.Z., P.R., T.R., M.R., J.R., )
)
Minors-Respondents ) APPEAL FROM THE CIRCUIT
Appellees, ) COURT OF COOK COUNTY.
)
THE PEOPLE OF THE STATE OF )
ILLINOIS, )
)
Petitioner-Appellee, ) HONORABLE JOHN
) SORRENTINO, JUDGE
v. ) PRESIDING.
)
M.Z. and J.R. SR., )
)
Respondents-Appellants. )
JUSTICE GORDON delivered the opinion of the court:
M.Z. and J.R. Sr. appeal from the trial court order
adjudicating V.Z., P.R., T.R., M.R. and J.R. wards of the court
and from the dispositional order continuing custody of P.R.,
T.R., M.R. and J.R. with M.Z. and J.R. Sr. under an order of
protective supervision. At the conclusion of the adjudicatory
hearing, the trial court found that V.Z. had been sexually abused
by J.R. Sr., her stepfather. See 705 ILCS 405/2-3(2)(iii) (West
1992). The court further found that V.Z. was abused or neglected
by M.Z. and J.R. Sr. based upon evidence showing lack of care,
injurious environment, and substantial risk of physical injury.
See 705 ILCS 405/2-3(1)(a) (lack of care), 3(1)(b) (injurious
environment), 3(2)(ii) (substantial risk/physical injury) (West
1994). With respect to P.R., T.R., M.R., and J.R., the court
made findings of abuse and neglect by M.Z. and J.R. Sr. based
upon evidence showing the existence of an injurious environment
resulting from the sexual abuse of V.Z. See 705 ILCS 4-5/2-
3(1)(b) (West 1992).
On appeal, M.Z. and J.R. Sr. argue that the petitions for
adjudication of wardship should have been dismissed because the
adjudicatory hearing was held beyond the time limits of section
2-14 of the Juvenile Court Act of 1987 (the Juvenile Court Act)
(705 ILCS 405/2-14 (West 1992)). They also argue that they were
unfairly prejudiced at the adjudicatory hearing when the judge
allowed non-expert opinion testimony concerning an ultimate issue
in the case.
The facts relevant to the timeliness of the adjudicatory
hearing show that on July 23, 1993 petitions for adjudication of
wardship were filed with respect to V.Z., P.R., T.R., M.R. and
J.R. A temporary custody hearing was held that day. On the next
court date, October 25, 1993, V.Z.'s natural father, T.G., who
had been served by publication, was defaulted for want of
appearance or answer. The court set the adjudicatory hearing for
December 21, 1993. On that date, the assistant public defender,
who was representing M.Z. and J.R. Sr., requested a continuance;
and the cause was continued by agreement and pursuant to court
order to July 11, 1994. Further continuances by agreement were
granted by court order on July 11, 1994 to July 29, 1994 and on
July 29, 1994 to October 25, 1994. On October 25, 1994, M.Z. and
J.R. Sr. stated they were ready to proceed to adjudicatory
hearing, and the cause was continued by agreement to December 5,
1994. An order dated December 5, 1994 shows that the
adjudicatory hearing was further continued by agreement of all
the parties to January 30, 1995, although a line was drawn
through that date and the date of December 20, 1994 was written
above it. The transcript of that hearing, which does not
identify the individuals who were present, discloses the
following colloquy:
"THE COURT: Give the dates on those other cases that
are being continued.
UNIDENTIFIED VOICE: The [Z.] and [P.R., T.R., M.R.
and J.R. Jr.] case, 93 JA 3440 and 93 JA 3449-52 is
being continued to January 30th, 1995, for trial."
On December 21, 1994, M.Z. and J.R. Sr. filed a "Motion to
Dismiss." In that motion they made the following excerpted
allegations regarding the December 5, 1994 order of continuance:
"6. On December 5, 1994, the court was not in session.
7. The original continuance date was January 30,
1995.
8. The public defender's office, on behalf of the
parents, requested a sooner date to comply with the 30
day time limit of the statute.
9. The trial was set for December 20, 1994.
10. On December 19, 1994, the public guardian's office
informed the assistant public defender assigned to the
case that she was unaware that the date had been
changed and would not be ready for trial on December
20, 1994."
M.Z. and J.R. Sr. requested that the petitions for adjudication
of wardship be dismissed or "in the alternative" that a trial
date be set "within 30 days from December 5, 1994 to comply with
the statute."
On December 23, 1994, at the hearing on the motion to
dismiss, the assistant public guardian, who was representing the
minors, reiterated the agreement of the parties on December 5,
1994 to continue trial to January 30, 1995. In this regard she
stated:
"Your Honor, if I can clarify for the record, the
initial date that was set, agreed upon by all the
parties, including Guardian of record, Sherry Fox, was
for January 30th.
Apparently the date was changed after that without
notifying her. Yes, Mr. Mondairo was notified and told
Ms. Fox if she had any problem to notify the parties.
Ms. Fox, the next day came down, notified the
court, indicated that she would, of course, be out-of-
town [sic] that date, and that the original court date
that was set, January 30th with all parties present,
should stand. And the court order reflected that was
the original date that was going to be set."
The court did not make any finding regarding the hearing date
change from December 20, 1994 to January 30, 1995. It denied the
motion to dismiss but entered an order "[o]n motion of the Public
Guardian" continuing the trial date to January 18, 1995.
At the hearing on January 18, 1995, the assistant state's
attorney and the assistant public defender stipulated that, if
called to testify, M.Z. would state that she was unable to take
care of V.Z. The assistant state's attorney asked for a finding
of neglect as to V.Z. and indicated that she would not then
proceed on the sexual abuse allegation involving V.Z. or the
injurious environment allegations involving P.R., T.R., M.R. and
J.R. Based upon the stipulated testimony, the trial court found
that V.Z. was a neglected minor. Thereafter, the assistant
public defender moved for directed findings in favor of M.Z. and
J.R. Sr. on the remaining issues of sexual abuse as to V.Z. and
injurious environment as to P.R., T.R., M.R. and J.R. The trial
court continued the parents' motion for directed findings and
requested that the parties submit memoranda on the propriety of
the State's election not to proceed. The order entered on
January 18, 1995 indicated that trial was continued to February
24, 1995 by agreement of the parties.
On February 24, 1995 the trial court denied without
prejudice the parents' motion for directed finding indicating
that the petitions could not be dismissed without a determination
of whether the dismissal of the petitions was in the best
interest of the children. The parties agreed to waive the "best
interest" hearing and to proceed to trial on the merits of the
petitions with the public guardian's office assuming the burden
of proof of the allegations in the petitions. Trial was
continued by agreement of the parties to April 4, 1995.
On April 4 and 5, 1995 testimony was offered by the parties.
On April 10, 1995, by order and agreement of the parties, the
trial was continued to May 15, 1995. On May 15, 1995, testimony
was concluded, and the parties made closing arguments. The
matter was continued by agreement of the parties and order of the
court to May 24, 1995 for decision. On May 24, 1995 the judge
made written findings that V.Z. was abused or neglected based
upon lack of care, injurious environment, substantial risk of
physical injury and sexual abuse and that P.R., T.R., M.R., and
J.R. were abused or neglected based upon the existence of an
injurious environment. See 705 ILCS 405/2-3(1)(a) (lack of
care), 3(1)(b) (injurious environment), 3(2)(ii) (substantial
risk/physical injury), 3(2)(iii) (sexual abuse) (West 1992). On
August 21, 1995 the trial court terminated V.Z.'s wardship
pursuant to the State's motion. On that same date, the court
ordered that P.R., T.R., M.R., and J.R. Jr. remain in the custody
of M.Z. and J.R. Sr. subject to an order of protective
supervision and continued the matter to February 5, 1996. M.Z.
and J.R. Sr. filed their notice of appeal on August 21, 1995.
The statute that governs the first issue in the instant
appeal, namely, the timeliness of the adjudicatory hearing, is
section 2-14 of the Juvenile Court Act. That section provides:
"(a) Purpose and policy. The legislature recognizes
that serious delay in the adjudication of abuse,
neglect, or dependency cases can cause grave harm to
the minor and the family and that it frustrates the
best interests of the minor and the effort to establish
permanent homes for children in need. The purpose of
this Section is to insure that *** the State of
Illinois will act in a just and speedy manner to
determine the best interests of the minor ***.
(b) When a petition is filed alleging that the minor
is abused, neglected or dependent, an adjudicatory
hearing shall be held within 90 days of the date of
service of process upon the minor, parents, any
guardian and any legal custodian.
(c) Upon written motion of a party filed no later
than 10 days prior to hearing, or upon the court's own
motion and only for good cause shown, the Court may
continue the hearing for a period not to exceed 30
days, and only if the continuance is in the best
interests of the minor. When the court grants a
continuance, it shall enter specific factual findings
to support its order, including factual findings
supporting the court's determination that the
continuance is in the best interests of the minor.
Only one such continuance shall be granted. A period
of continuance for good cause as described in this
Section shall temporarily suspend as to all parties,
for the time of the delay, the period within which a
hearing must be held. On the day of the expiration of
the delay, the period shall continue at the point at
which it was suspended.
The term 'good cause' as applied in this Section
shall be strictly construed and be in accordance with
Supreme Court Rule 231(a) through (f). Neither
stipulation by counsel nor the convenience of any party
constitutes good cause. If the adjudicatory hearing is
not heard within the time limits required by section
(b) or (c) of this Section, upon motion by any party
the petition shall be dismissed without prejudice.
(d) The time limits of this Section may be waived
only by consent of all parties and approval of the
court." 705 ILCS 405/2-14 (West 1992).
M.Z. and J.R. Sr. contend that section 2-14 should be given
a mandatory construction such that dismissal of the petitions is
warranted if the 90-day time limit provided therein has been
exceeded. They further argue that, under the facts herein,
dismissal is warranted because the adjudicatory hearing was not
commenced until April 4, 1995, 18 months after service of
process, and because the adjudicatory decision was not rendered
until May 24, 1995, 19 months after service of process.
The State and the Public Guardian argue that section 2-14
should be given a directory construction. They alternatively
argue that even if that provision is given a mandatory
construction, the petitions in the instant case should not be
dismissed because M.Z. and J.R. Sr. waived the time limits of
section 2-14 by requesting and/or agreeing to continuances that
extended the time of the adjudicatory hearing beyond the 90-day
period. See 705 ILCS 405/2-14(d) (West 1992).
M.Z. and J.R. Sr. are correct in their contention that the
time limits of section 2-14 are mandatory. If the adjudicatory
hearing is not completed within 90 days of service of process, or
within 120 days where a good cause continuance has been granted,
the petition must be dismissed without prejudice. In re S.G.,
No. 80688 (Ill. February 20, 1997). As pointed out in the
intermediate opinion of In re S.G., 277 Ill. App. 3d 803, 661
N.E.2d 437 (1996), the mandatory nature of that limitation
reflects the fact that any resulting dismissal would be without
prejudice.
It also is manifest from the face of section 2-14 that the
parties can waive the statutory time limits provided therein.
Subsection (d) of that provision specifically states: "[t]he
time limits of this Section may be waived only by consent of all
parties and approval of the court." 705 ILCS 405/2-14(d) (West
1992). We are aware of no case to apply the waiver provision
under the statutory scheme before us. In In re S.G., No. 80688
(Ill. February 20, 1997), our supreme court recognized the
existence of the waiver provision but did not find a waiver under
the facts before it because the minor's mother had repeatedly
voiced frustration at the slow pace of adjudicatory proceedings
and had repeatedly expressed her desire for quick completion of
the proceedings.
In In re Jackson, 243 Ill. App. 3d 631, 611 N.E.2d 1356
(1993), the court applied a predecessor time limit statute which
had a waiver provision identical to the one at bar and found that
a waiver had occurred. Compare Ill. Rev. Stat. 1989, ch. 37,
par. 802-14(d) with 705 ILCS 405/2-14(d) (West 1992). In
Jackson, the 120-day time period, then in force, would have run
on August 22, 1989. See Ill. Rev. Stat. 1989, ch. 37, par. 802-
14(b). However, on June 15, 1989, the mother filed a motion for
a transcript; and on August 14, 1989, she filed a request for
production. Her motions were granted and the adjudicatory
hearing was continued. The mother then moved to dismiss the
proceedings on March 30, 1990; and the motion was denied on May
25, 1990. The adjudicatory hearing was held on March 22, 1991.
Affirming the denial of the motion to dismiss, the court stated:
"We do not think appellant can complain of delays which
she occasioned. Section 2-14(d) provides that the time
limits established in section 2-14 may be waived by
consent of all parties and approval of the court. We
find that this is precisely what occurred in the
instant case. By repeatedly filing motions requiring
extensions of the 120-day time limit, appellant
effectively waived that time limit. By rescheduling
the adjudicatory hearing to accommodate appellant, the
court approved the waiver of the time limit. *** We
note that the adjudicatory hearing was originally
scheduled within the 120-day time limit. The trial
court did not err in denying appellant's motions to
dismiss ***." 243 Ill. App. 3d at 648, 611 N.E.2d at
1367-68.
Here, the 90-day period began to run on October 27, 1993
when V.Z.'s father was defaulted after publication notice. See
705 ILCS 405/2-14(b); In re S.G., No. 80688, slip op. at 9 (the
date of default is the starting date for the 90-day statutory
period). The first trial date, December 21, 1993, was set to
occur on day 54 of the 90-day time period. On December 21st,
however, the parents requested a continuance; and the hearing was
continued to July 11, 1994 by agreement of the parties and upon
approval of the court. Additional continuances by agreement of
the parties were granted by the court on July 11, 1994 to July
29, 1994 and on July 29, 1994 to October 25, 1994. On October
25, 1994, M.Z. and J.R. Sr., through their attorney, an assistant
public defender, indicated that they were ready to proceed to
trial and requested the "soonest possible trial date." The
assistant public guardian, who was representing the minors,
requested a month's continuance. The trial court suggested the
date of December 5, 1994 and specifically asked the parents'
counsel whether she was in agreement with that date. The
assistant public defender responded, "That's fine, Judge." The
order to continue the trial to December 5, 1994 indicated that it
was by agreement of the parties. Thus, since during the period
of December 21, 1993 through December 5, 1994 all of the
continuances were by agreement of the parties and upon approval
of the court, the transpired time for purposes of the 90-day time
limit remained at 54 days.
There is some uncertainty as to the next continuance that
was granted on December 5, 1994. As discussed above, the
transcript for that date, which does not identify the individuals
who were present, shows that an "unidentified voice" indicated
that the trial was being continued to January 30, 1995. The
written order entered on December 5, 1994 also indicates that the
trial date was continued to January 30, 1995 by agreement of the
parties. However, that order also shows that a line was drawn
through the date of January 30, 1995 and that the date of
December 20, 1994 was written above it. At the December 23, 1994
hearing on the parents' motion to dismiss, the assistant public
defender indicated that she had requested, after the date was set
to January 30, 1995, that the date be set back to December 20 and
that the State's Attorney's Office and the Public Guardian's
Office were subsequently notified of that change. The assistant
public guardian responded:
"Your Honor, if I can clarify for the record, the
initial date that was set, agreed upon by all the
parties, including Guardian of record, Sherry Fox, was
for January 30th.
Apparently the date was changed after that without
notifying her. Yes, Mr. Mondairo was notified and told
Ms. Fox if she had any problem to notify the parties.
Ms. Fox, the next day came down, notified the
court, indicated that she would, of course, be out-of-
town [sic] that date, and that the original court date
that was set, January 30th with all parties present,
should stand. And the court order reflected that was
the original date that was going to be set."
What appears to have occurred is that all of the parties
agreed to the original continuance date of January 30, 1995 and
that sometime later the assistant public defender unilaterally
sought a date change without prior notice to the other parties
and without their prior consent. Given these facts, argument can
be made that for purposes of counting the 90-day time period that
the original agreed upon date of January 30, 1995 should stand.
However, we need not decide that question because, in any event,
there was no disagreement to extend the trial date to at least
December 20, 1994. Including the days of December 20 through
December 23, 1994 as well as the period of December 23, 1994
through January 18, 1995, the continuance granted on motion of
the public guardian, would increase the count by 29 days to 83
days.
Trial commenced on January 18, 1995 at which time the court
made a finding of neglect with respect to V.Z. pursuant to the
stipulated testimony of her mother. By order of the court and
agreement of the parties the hearing was continued to February
24, 1995; and from February 24, 1995 to April 4, 1995. During
these continuances, the count remained at 83 days. Testimony was
taken on April 4 and 5, 1995. The record does not account for
the five-day period of April 5 to April 10, 1995. Therefore, we
would add those five days and the two trial days and increase the
count to 90 days. On April 10, 1995, trial was continued by
agreement of the parties and order of the court to May 15, 1995.
On May 15, 1995, the hearing concluded; and the matter was
continued by agreement of the parties and order of the court to
May 24, 1994 for decision. These continuances, which were by
agreement and approval of the court, did not add any additional
time to the 90-day count. Thus, under these facts, the 90-day
time limit set forth in section 2-14(c) was not violated.
Argument could be made that any counting would become
unnecessary under the provisions of section 2-14(d) which
provides for waiver of time limits by consent of all parties and
approval of the court. If construed literally, once the 90-day
time limit is exceeded by any agreement of all the parties and
approval of the court, no further time period controls. It would
appear that the decision in Jackson, 243 Ill. App. 3d 631, 611
N.E.2d 1356, stands for that proposition by holding that any
waiver of the time limits of the statute by the consent of all
the parties and approval of the court operates as a total waiver
of the right to seek a timely adjudicatory hearing. However, we
cannot agree with that proposition since the result of such an
interpretation with respect to the statute now under
consideration would violate that statute's expressed legislative
purpose which is to "insure that *** the State of Illinois will
act in a just and speedy manner to determine the best interest of
the minor ***"; to ensure expeditious adjudication; and to avoid
serious delay. 705 ILCS 405/2-14(a) (West 1992). See also In re
S.G., slip op. at 6 (in interpreting a statute, legislative
intent must be ascertained and given effect). We note that these
expressed purposes were not expressed with respect to the earlier
version of the statute that controlled in Jackson. Moreover,
under that earlier version of the statute, the dismissal of the
petition would have been with prejudice such that the court's
finding of waiver to avoid that result is evident. See In re
S.G., 277 Ill. App. 3d 803, 810, 661 N.E.2d 437, 441 (1996),
aff'd, No. 80688 (Ill. February 20, 1997) (distinguishing Jackson
on the basis that statute therein required dismissal of petition
with prejudice). In the instant case, however, the dismissal
would have been without prejudice, and the consequence of that
dismissal would not have had the same dispositive impact. Thus,
in order to concomitantly recognize the waiver provision of
section 2-14 with the purpose and policy provision of that
statute, we must conclude that the legislature intended that the
90-day statutory time period be tolled whenever the parties and
the court have unanimously agreed to continuances but that the
clock resumes running once the waived period has past.
This conclusion is not inconsistent with the legislative
history of section 2-14. Prior versions of that section allowed
for unlimited amounts of tolling on a unilateral basis without
requiring unanimous agreement of all the parties. See, e.g.,
Ill. Rev. Stat. 1987, ch. 37, par. 802-14 (a), stating in
pertinent part:
"(a) *** The 120 day period in which an adjudicatory
hearing shall be held is tolled by: (A) delay
occasioned by the minor; (B) a continuance allowed
pursuant to Section 114-4 of the Code of Criminal
Procedure of 1963 after a court's determination of the
minor's physical incapacity for an adjudicatory
hearing; or (C) an interlocutory appeal."
See also Ill. Rev. Stat. 1987, ch. 37, par. 802-14(b); Ill. Rev.
Stat. 1985, ch. 37, par. 704-2 (stating "[d]elay occasioned by
the respondent shall temporarily suspend, for the time of the
delay, the period within which the respondent shall be tried
pursuant to this Section"). The legislature's repeal of these
provisions evidences an intent to eliminate (with the exception
of one 30-day continuance for good cause (705 ILCS 405/2-14(c)
(West 1992))) the tolling of the time period on the basis of any
unilateral request for a continuance without obtaining unanimous
consent. However, that repeal should not be read to eliminate
tolling where all the parties have consented and where court
approval has been obtained. For as stated above, to hold that
there is no tolling where there is waiver and that the waiver
would abolish all time limitations would lead to the anomalous
result, contrary to the stated purpose of the statute, of
extending rather than shortening the time period within which the
adjudicatory hearing must take place.
The parents next argue that they were unfairly prejudiced at
the adjudicatory hearing when the judge allowed a non-expert
witness to give opinion testimony concerning an ultimate issue in
the case. That witness, Jean McCarthy, a probation officer with
the juvenile court, stated that she had provided interim
counseling to approximately 100 sex abuse victims during the
previous two years. She testified to a conversation she had with
V.Z. in August 1993. At that time V.Z. told her that, from the
time she was 13 years old, her stepfather, J.R. Sr., would
frequently come into her room at night with a flashlight, which
he would shine upon her, and that he would fondle or pinch her
breasts. He watched her take baths through a hole in the
bathroom door. V.Z. would cover the hole but J.R. Sr. would
knock out the covering. V.Z. also told her that her stepfather
showed her "porno flicks."
McCarthy testified that she spoke to M.Z., V.Z.'s mother.
She stated that M.Z. did not feel that what the stepfather had
done was serious because "she