In re I.S. , 2023 IL App (2d) 230122-U ( 2023 )

2023 IL App (2d) 230122-UNo. 2-23-0122
Order filed July 24, 2023
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re I.S., a Minor ) Appeal from the Circuit Court
) of De Kalb County.
)
) No. 22-JA-25
)
(The People of the State of Illinois, Petitioner- ) Honorable
Appellee, v. Joseph S., Respondent- ) Sarah Gallagher Chami,
Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court.
Justices Schostok and Kennedy concurred in the judgment.
ORDER
¶1 Held: Appellate counsel’s motion to withdraw is granted where appellate jurisdiction is
lacking; we therefore dismiss the appeal.
¶2 On March 24, 2023, the circuit court of De Kalb County entered a temporary custody order
restoring guardianship and custody of I.S. to respondent, Joseph S., and Charlotte S., a/k/a
Charlotte P. (mother), along with a supplemental protective order setting forth the obligations of
the parents regarding their guardianship and custody of I.S. On April 12, 2023, respondent filed a
notice of appeal purporting to appeal a March 23, 2022, order pursuant to Supreme Court Rule 317
(eff. July 1, 2017) (dealing with appeals as of right from the appellate court to the supreme court).
Respondent’s appointed counsel has moved to withdraw pursuant to Anders v. California, 386
U.S. 738 (1968). See In re Alexa J., 345 Ill. App. 3d 985 (2003) (holding that Anders applies in
2023 IL App (2d) 230122-Utermination of parental rights cases and outlining the procedure to be followed when appellate
counsel seeks to withdraw). Appellate counsel’s notice of filing and proof of service indicate that
he sent to respondent by email, regular mail, and certified mail a copy of the motion to withdraw.
More than 30 days has elapsed and respondent has not filed a response. Appellate counsel
contends that the appeal of this case must be dismissed because no appealable order has been
entered in the trial court. After reviewing the record and counsel’s motion, we grant the motion to
withdraw and dismiss this appeal.
¶3 I. BACKGROUND
¶4 On March 22, 2022, the State filed a petition for adjudication of neglect for I.S. On March
23, 2022, the trial court entered three orders: (1) an order for the issuance of a juvenile warrant for
I.S., (2) an order appointing CASA De Kalb County, Inc. (CASA), as guardian ad litem for I.S.,
and (3) an order appointing counsel for I.S. and for respondent (for shelter care only). On March
28, 2022, the court entered a temporary custody order. On April 22, 2022, respondent filed a notice
of appeal challenging the March 28, 2022, order and a March 25, 2022, order. 1 In re I.S., No. 2-
22-0134. 2
¶5 On June 17, 2022, the State filed its first amended petition for adjudication of neglect, and,
on June 27, 2022, the court timely commenced the adjudicatory hearing and continued the matter
1
There is no March 25, 2022, order appearing in the record. It is possible that this is a
scrivener’s error mistranscribing the dates of the three March 23, 2022, orders. Copies of the
challenged orders were not attached to respondent’s notice of appeal, so we cannot definitively
determine which orders beyond the March 28, 2022, order respondent intended to appeal.
2
On July 7, 2022, upon the State’s motion, this appeal was dismissed for lack of
jurisdiction.
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2023 IL App (2d) 230122-Ufor further proceedings. The matter was continued from time to time, and, on January 13, 2023,
respondent and I.S.’s mother both stipulated to a finding that I.S. was a neglected minor. The court
continued the matter for a February 10, 2023, dispositional hearing.
¶6 On February 10, 2023, the trial court entered an order continuing the dispositional hearing.
The order noted that the “parties waive [the] time frame [for holding a dispositional hearing].” On
March 14, 2023, the mother filed a motion to vacate the temporary custody order.
¶7 On March 24, 2023, the trial court entered a temporary custody order. In this order, the
court determined that it was “no longer a matter of urgent and immediate necessity for the
protection of [I.S. that she] be placed in a shelter care facility.” Instead, “Temporary Guardianship
and Custody [was] placed with Parents, subject to Supplemental Protective Orders.” The order
additionally provided for a May 12, 2023, status hearing. Also on March 24, the court entered a
supplemental protective order outlining respondent’s and the mother’s responsibilities as
conditions of their guardianship and custody of I.S. The supplemental protective order specifically
provided that this matter was “still pre-disposition, and [was] a ‘placement’ case, and not an
‘intact’ case, pending further proceedings.”
¶8 On April 12, 2023, respondent filed a notice of appeal, purporting to appeal a March 23,
2022, order pursuant to Supreme Court Rule 317, and failing to attach any copies of the order or
orders being appealed. On April 13, 2023, counsel was appointed to represent respondent on
appeal. Appellate counsel now moves to withdraw, asserting that there is no basis for appellate
jurisdiction.
¶9 II. ANALYSIS
¶ 10 Counsel seeks to withdraw, contending that, on this record, there is no basis for this court
to exercise appellate jurisdiction. In Alexa J., 345 Ill. App. 3d at 988-89, this court held that
counsel must follow the Anders procedure and provide a record of the unfitness and best interests
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2023 IL App (2d) 230122-Uhearing. In addition, counsel must, if possible, identify any potentially meritorious issues and
demonstrate why they are not meritorious. Id.¶ 11 On appeal, counsel avers that he has reviewed the record on appeal and concluded that,
because no final orders or appealable interlocutory orders have been entered in the trial court, this
court lacks jurisdiction to consider an appeal. We agree.
¶ 12 As an initial matter, we note that respondent’s notice of appeal identifies an order dated
March 23, 2022, as the judgment being appealed. On that date, the trial court entered an order
appointing the public defender to represent respondent for purposes of the pending shelter care
hearing, an order appointing CASA as guardian ad litem for I.S., and an order directing that a
juvenile warrant for I.S. issue.
¶ 13 As a general matter, an appellate court has jurisdiction to hear appeals only from final
judgments entered in the circuit court. Johnson v. Armstrong, 2022 IL 127942, ¶ 19. A final order
or judgment terminates the litigation between the parties on the merits of the case, so that, if
affirmed, the trial court need only proceed with the execution of the judgment. Id. ¶ 21. None of
the March 23, 2022, orders are final orders. We are thus without jurisdiction to consider an appeal
from those orders as specified in respondent’s notice of appeal. Id. ¶ 19. Moreover, even if the
March 23, 2022, orders constituted final judgments, respondent would have had 30 days from the
entry of the orders in which to appeal them. Ill. S. Ct. R. 303 (eff. July 1, 2017). Respondent’s
April 12, 2023, notice of appeal is therefore untimely and does not confer jurisdiction.
¶ 14 We also consider that respondent’s notice of appeal contains a scrivener’s error regarding
the date of the order appealed. On March 24, 2023, the trial court entered a temporary custody
order restoring to respondent and mother guardianship and custody of I.S. Within 30 days
thereafter, on April 12, 2023, respondent filed his notice of appeal. It is conceivable that
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2023 IL App (2d) 230122-Urespondent made a scrivener’s error on the notice of appeal, mistakenly writing “03/23/2022”
when he meant March 24, 2023.
¶ 15 Such a scenario provides respondent no assistance. The March 24, 2023, order is nonfinal
on its face, being a temporary custody order. Moreover, the matter was set for further status,
thereby contemplating further proceedings on the issues that brought I.S. before the court. As a
nonfinal order, the March 24, 2023, order does not confer appellate jurisdiction. Johnson, 2022
IL 127942, ¶ 19.
¶ 16 Further, in the context of proceedings under the Juvenile Court Act of 1987 (Act) (705
ILCS 405/1-1 et seq. (West 2022)), it is long settled that a dispositional order, which provides for
the minor’s placement, represents a final judgment for purposes of appeal. In re J.M., 151 Ill. App.
3d 1037, 1038 (1987). By contrast, an adjudicatory order, in which the trial court determines
whether a minor is abused or neglected, is but the first step on the road to a dispositional order and
does not constitute a final judgment for purposes of appeal. Id.¶ 17 The record on appeal does not contain a dispositional order. At most, the January 13, 2023,
order in which both mother and respondent stipulated to the trial court’s finding that I.S. was
abused or neglected, constitutes a nonfinal adjudicatory order. This order, being nonfinal, does
not confer appellate jurisdiction. Id.¶ 18 Interlocutory orders may be rendered appealable under the Supreme Court Rules. Illinois
Supreme Court Rule 307(a)(6) (eff. Nov. 1, 2017) provides for an appeal as of right regarding
orders “terminating parental rights” or ruling on a temporary commitment in adoption proceedings.
The record contains no order terminating respondent’s parental rights, so Rule 307 is unavailable
to confer appellate jurisdiction; likewise, the record does not indicate that I.S. has been placed for
adoption, so Rule 307 remains unavailable to confer appellate jurisdiction.
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2023 IL App (2d) 230122-U¶ 19 Finally, Illinois Supreme Court Rule 306(a)(5) (eff. Oct. 1, 2020), provides for a permissive
interlocutory appeal of “interlocutory orders affecting the care and custody of *** unemancipated
minors.” The record reveals no petition for leave to appeal any order entered by the trial court in
this case. Rather, respondent’s notice of appeal purports to raise an appeal as of right. Rule
306(a)(5), therefore, does not confer appellate jurisdiction.
¶ 20 We have considered all the trial court’s orders in the record on appeal and have determined
there is no basis to establish our jurisdiction to consider any potential issue on appeal.
Accordingly, we must grant counsel’s motion to withdraw and dismiss this appeal.
¶ 21 III. CONCLUSION
¶ 22 For the foregoing reasons, we grant appellate counsel’s motion to withdraw and dismiss
the appeal.
¶ 23 Appeal dismissed.
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