In re Daniel R.

SIXTH DIVISION
August 22, 1997

No. 1-96-4186

In Re DANIEL R., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Cook County.
)
Petitioner-Appellee, )
)
v. )
)
Martha Elizonda and Daniel R., Sr.., )
)
Respondents-Appellees )
)
(Daniel R., a Minor, ) Honorable
) Lynne Kawamoto,
Respondent-Appellant)). ) Judge Presiding.

PRESIDING JUSTICE GREIMAN delivered the opinion of the
court:
This is the minor-respondent's appeal from an order of the
child-protection court (trial court) allowing the public
defender's motion on behalf of the parents-respondents for
substitution of judge as of right pursuant to section 2-
1001(a)(2) of the Code of Civil Procedure (735 ILCS 5/2-
1001(a)(2) (West 1994)).
The trial court adjudicated five children of the mother-
respondent wards of the court on August 2, 1996. On August 23,
1996, the mother gave birth to a sixth child, Daniel, who has a
different father than the other children. The State subsequently
filed a neglect petition on behalf of Daniel. On September 26,
1996, the trial court entered an order allowing the public
defender's motion on behalf of the parents-respondents for
substitution of judge as of right concerning Daniel's petition.
On November 4, 1996, the trial court found that its order
allowing a substitution of judge as of right involved an
important and currently unresolved question of law. Accordingly,
the trial court certified the following question for our review
pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308):
"Under the Juvenile Court Act, are abuse and neglect
petitions filed on behalf of siblings and/or half
siblings of children already under the jurisdiction of
the court new actions which would entitle a parent-
respondent to substitution of judge as of right under
section 2-1001(a)(2) of the Code of Civil Procedure, or
are such later-filed petitions merely continuations of
or amendments to a single, ongoing family case, which
would require a parent-respondent seeking a
substitution of judge to demonstrate actual prejudice
or other cause under section 2-1001?"
The public guardian argues against allowing substitution as
of right under these circumstances for the following reasons: (1)
a petition filed on behalf of a minor with siblings already
before the trial court constitutes an amendment to a unified
"family" case; (2) allowing substitution as of right is contrary
to the purpose of the Juvenile Court Act of 1987 (705 ILCS 405 1-
1 et seq. (West 1994)), established custom and practice and
wastes judicial and public resources; (3) allowing substitution
as of right will lead to "judge shopping"; (4) as applied,
section 2-1001(a)(2) violates the separation of powers clause in
the Illinois Constitution; and (5) new sibling petitions are
analogous to postdecree petitions under the Illinois Marriage and
Dissolution of Marriage Act (750 ILCS 5/101 et seq (West 1994)).
The State's Attorney agrees with the public defender that
the correct legal conclusion would allow for substitution as of
right under these circumstances, but argues that this court
should recognize or create a flexible rule whereby the juvenile
court may exercise its discretion in consolidating cases relating
to individual children in the same family before a single judge.
For the reasons that follow, we affirm the trial court's
order granting substitution of judge as of right.
Lazaro F. (Lazaro) and Martha Elizondo (Martha) are the
parents of five daughters. On April 18, 1995, Lazaro took four of
the girls to Christopher House Shelter. Lazaro, who did not
identify himself as the girls' father, told an employee at the
shelter that the children's mother had abandoned them. He left,
saying his car was running, and never returned.

The children, Gladiz, Barbara, Teresa and Jessica, ranging
in age from seven to two, told the worker the man was their
father. The children said they did not know where their mother
was and they believed their oldest sister, 11-year-old Cecilia,
was still with their father.
On June 3, 1995, Lazaro asked David Gonzalez (Gonzalez), a
man who worked at a sporting goods store, to take Cecilia because
she needed a place to stay and something to eat. Gonzalez agreed
and took Cecilia to the home where his own daughter lived with
his girlfriend and the girlfriend's mother. Lazaro never returned
for Cecilia.
On April 20, 1995, the State's Attorney filed petitions for
adjudication of wardship on behalf of Gladiz, Barbara, Teresa and
Jessica. A few weeks later, the State filed a petition on behalf
of Cecilia. The trial court awarded temporary custody of the
children to the Illinois Department of Children and Family
Services (DCFS) and continued the matter for hearing on the
State's petitions.
On June 4, 1996, the court held an adjudicatory hearing
regarding all of the children but Cecilia, whose case was
continued to afford the State time to subpoena an additional
witness. Two witnesses testified at the June 4, 1996, hearing,
Phoebe Leopoldo (Leopoldo), a worker from Christopher House, and
Martha.
Leopoldo testified to the deposit of the four younger girls
with Christopher House and the father's failure to return for
them. Leopoldo notified the police, who came and took the
children from the shelter.
Martha testified that she was in jail in Milwaukee,
Wisconsin, during March and April of 1995. Upon her release, she
returned to the family apartment in Milwaukee and found it empty.
She did not know where Lazaro and her five children were.
Martha further testified that she was homeless until Lazaro
found her on the streets. He told her that the children were
staying with a friend and that he had rented an apartment for the
family in Chicago. When she and Lazaro arrived in Chicago, they
picked up the girls and took them to the "apartment," which
turned out to be a shelter.
Martha said that one of Lazaro's friends gave him some drugs
and "from then on he was on it, he's always been on it." She
testified that, one day in April, she left the shelter to get
food, and upon her return four hours later, Lazaro and the
children were gone. Martha remained at the shelter for about a
month but did not contact authorities with respect to the
children.
The trial court found the four girls neglected because both
parents failed to provide them with the care necessary for their
well-being. The court noted specifically Martha's failure to make
any efforts to locate her children. The court then continued the
case to August 2, 1996, for an adjudicatory hearing regarding
Cecilia and a dispositional hearing regarding all the girls.
Four witnesses testified at the August 2, 1996, hearing,
including the people to whom Cecilia had been entrusted.
The testimony indicated that Cecilia had been exposed to her
parents' drug use and lived in an injurious environment lacking
stability and support.
Martha testified that Lazaro physically abused her and kept
the whereabouts of the children from her, that she was homeless
in Milwaukee, and that she had no way of inquiring as to the
welfare of her children. Martha eventually "ran into" Lazaro, and
he asked her to accompany him to Chicago, where he had rented an
apartment from which he later removed the children without
advising Martha or relaying their whereabouts.
Based upon the above testimony, the trial court found that
Cecilia was neglected because her parents failed to provide her
with the necessary care and because they failed to ensure that
Cecilia was in a safe environment. The court proceeded to hold a
dispositional hearing for all five girls.
Two Catholic Charities case workers testified at the
dispositional hearing. Kathleen Walsh (Walsh) testified that she
was assigned to work with Barbara, Teresa, Gladiz and Jessica in
July 1995 and that the girls were placed together in a
nonrelative foster home.
Martha visited the girls monthly. She had cooperated with
some of the services offered through the agency. She had
completed a psychological evaluation and a drug assessment, but
she had not completed parenting classes or initiated counseling.
Walsh reported that Martha had two or three negative urine
drops in June 1996, so that her drug assessment indicated that
she did not need drug treatment services at that time.
Lazaro could not be located, had not visited his children
and was uninvolved with any services provided by Catholic
Charities. In Walsh's opinion, it was in the best interests of
Barbara, Teresa, Gladiz and Jessica to be placed under the
guardianship of DCFS.
The trial court found that it was in the best interests of
all the girls to be adjudicated wards of the court. The court
determined that Martha was unable to provide protection and care
for them and their father was both unable and unwilling to do so.
Noting that a permanency goal of long-term foster care had been
established for all of the sisters in September 1995, the trial
court scheduled a court review of that goal for November 1, 1996.
On August 23, 1996, Martha gave birth to a sixth child,
Daniel R. When Daniel was about three weeks old, Martha tested
positive for illegal drugs. A Catholic Charities case worker
submitted to the State's Attorney a request for filing
abuse/neglect petition (petition request) regarding Daniel
because of Martha's unabated drug use.
The petition request included a child-endangerment risk-
assessment protocol that detailed Martha's history of neglect of
her other five children, including her admission that she had
been responsible for the loss of their custody. The petition
request also included various documents previously submitted to
the trial court concerning Daniel's half-sisters. A January 1996
status report indicated that Martha left a voice-mail message for
her case worker in October 1995, admitting that she was addicted
to crack cocaine.
A July 12, 1996, case transfer summary included with the
petition request summarized the history of Martha's loss of
custody over her daughters. The summary reported that Martha
would like to regain custody of her children but "has not taken
steps to do so."
An August 7, 1995, report prepared by Catholic Charities was
also included with the petition request and detailed Martha's
family history and the recent events that resulted in the trial
court granting DCFS guardianship of Martha's daughters. The
petition request further included Martha's September 27, 1995,
psychological evaluation that observed that "it is [presently]
unlikely that she will be a reliable caretaker for [her
children]."
Based on the petition request and accompanying documents,
the State filed a wardship petition regarding Daniel. The
petition alleged that Daniel was neglected because Martha:
"tested positive for controlled substance on
September 13, 1996; has not complied fully with
services including individual counseling and
parenting classes; [and] minor's siblings were left
with inadequate supervision."
The trial court held the initial hearing on Daniel's
petition on September 23, 1996. The public defender appointed to
represent both Martha and Daniel's father, Daniel R., Sr., moved
pursuant to section 2-1001(a)(2) for a substitution of judge as a
matter of right. The public defender argued that his clients
would not receive an impartial hearing because Martha's other
children were already before the court.
On September 26, 1996, the trial court granted the motion to
substitute over the objection of the public guardian. The trial
court found that, although substitution of judge was contrary to
the best interests of the children, it had to grant the public
defender's motion as the court was constrained by its reading of
two cases and the applicable statutory provisions. The trial
court then transferred Daniel's petition to another judge but
retained jurisdiction of the petitions regarding Martha's other
children. On November 25, pursuant to the public guardian's
petition pursuant to Rule 308, the trial court certified this
question of law for immediate appeal. This court accepted the
appeal on January 24, 1997.
Section 2-1001(a)(2) provides:
"Substitution as of right. When a party timely
exercises his or her right to a substitution without
cause as provided in this paragraph (2).
(i) Each party shall be entitled to one
substitution of judge without cause as a matter of
right.
(ii) An application for substitution of judge as
of right shall be made by motion and shall be
granted if it is presented before trial or hearing
begins and before the judge to whom it is presented
has ruled on any substantial issue in the case, or
if it is presented by consent of the parties.
(iii) If any party has not entered an appearance
in the case and has not been found in default,
rulings in the case by the judge on any substantial
issue before the party's appearance shall not be
grounds for denying an otherwise timely application for
substitution of judge as of right by the party." 735
ILCS 5/2-1001(a)(2) (West 1994).
It is well settled that the Illinois Code of Civil Procedure
applies to juvenile proceedings when the child's liberty is not
at issue and when no other section specifically regulates the
procedure at issue. In re Darnell J., 196 Ill. App. 3d 510
(1990). In Darnell, the reviewing court found that section 2-1001
was applicable in an abuse and neglect proceeding and the trial
judge before whom the motion for substitution was made had "no
discretion" to deny the motion. Darnell, 196 Ill. App. 3d at 513.
This holding was reaffirmed by our supreme court in In re
Dominique F., 145 Ill. 2d 311 (1991). This is controlling
precedent that the public guardian seeks to overcome with a
series of arguments relating to the issues that follow.
1. Whether a Petition Filed on Behalf of a
Minor With Siblings Already Before the Trial
Court Constitutes an Amendment or Addition to
a Unified "Family" Case or a New or "Individual"
Case Under the Juvenile Court Act.
Under the "family" case construct, the trial court would
invariably have ruled on a "substantial issue" in the "case"
related to the sibling or siblings already before the court.
Since a party cannot move for substitution after the judge has
ruled on a substantial issue, a party named in a subsequent
petition could almost never seek substitution as of right.
While this view might be inviting, under the Juvenile Court
Act, a "case" is initiated with the filing of a petition and is
entitled "In re the interest of ... a minor," suggesting that
each petition relates to the individual minor named in the
petition. Petitions are not entitled "In re the family of ...
Smith." Moreover, as this court recognized some time ago: "the
term 'neglect' does not have a fixed meaning; rather, the term
acquires content from the specific circumstances of each
individual case. [Citation.] Cases involving an adjudication of
neglect and wardship are in effect sui generis, and each case
must be decided on its own particular facts. [Citations.]" In re
Brooks, 63 Ill. App. 3d 328, 337 (1978).
Although Brooks stands for the proposition that "neglect" is
subjective, this also applies within an intrafamily context. That
is, to use the public defender's example, while a mother's act of
leaving her three-year-old home alone might constitute neglect,
the same cannot be said for leaving her teenage child for the
same period of time. Thus, even though a family's history is
highly relevant, each petition and subject minor should be
treated individually. Further, in the present case, there is the
additional factor that Daniel has a different father than
Martha's other children. Daniel, Sr., certainly has a right, as a
newly named respondent in the petition, to seek a substitution of
judge.
Section 2-1001 applies to this proceeding and does not
support the public guardian's attempt to extend the definition of
"a case" to encompass all "cases" related to the same family.
Accordingly, this argument is rejected.
2. Whether Allowing for Substitution as of
Right in Sibling Cases is Contrary to the
Purpose of the Juvenile Court Act in That it
Wastes Judicial and Public Resources.
The public guardian argues that allowing for substitution as
of right in this context will result in two or more judges
hearing essentially the same evidence and conceivably reaching
different conclusions, causing duplicative, confusing and perhaps
opposite dispositions. Although this argument has merit,
virtually identical arguments have been routinely rejected.
In both Darnell J. and Dominique F., the public guardian
moved for substitution as of right from the presiding trial
court. The trial court denied the motion after the public
guardian observed that he would continue to seek substitution in
all 50 cases his office had pending before the trial court. On
appeal, the State argued that the denial was proper because the
Guardian's practice of routinely filing these petitions in every
case before the particular trial court "disrupts the smooth
functioning of the courts." Darnell J., 196 Ill. App. 3d at 513;
Dominique F., 145 Ill. 2d at 320. Justice Bilandic, writing for
the court in both cases, held that "[t]he purported disruption of
the trial court's functioning asserted by the State in the case
at bar does not provide a rationale for departing from these
principles [that a trial court has no discretion to deny a
properly filed petition for substitution of judge]. Such a
disruption, should it be found to exist, can be dealt with
swiftly and effectively by other means." Dominique F., 145 Ill. 2d at 321; see also Darnell J., 196 Ill. App. 3d at 514.
The State raised a similar "judicial economy" argument in In
re R.L., 282 Ill. App. 3d 839 (1996). R.L. asked this court to
resolve the question of whether the finding of probable cause at
a minor's detention hearing, required to be held within 36 hours
of "arrest," should be deemed a finding of probable cause at a
subsequent hearing to determine whether the minor ought to be
transferred to the adult criminal justice system. R.L., 282 Ill.
App. 3d at 842.
In rejecting the State's argument that the earlier finding
of probable cause should be binding in the subsequent proceeding,
this court observed: "The State raises concerns about judicial
economy. If economies are to be achieved in the criminal justice
system, they should be elsewhere than in the disposition of
matters affecting our children." R.L., 282 Ill. App. 3d at 848.
See also Boatmen v. A.P. Green Refractory Co., 223 Ill. App. 3d
121 (1991) (rejecting judicial economy argument with respect to
substitution of judges).
Although undoubtedly true, the public guardian's invocation
of "judicial economy" and "waste of resources" has been rejected
in the past, particularly where the rights of minors are at
issue. This court sees no compelling reason to depart from
established precedent.
3. Whether the "Core Principle" of the Juvenile
Court Act, the "Best Interests of the Minor,"
Should Somehow be Used to Override Case Law in
Favor of Judicial Substitution as a Matter of Right.
Initially, the public guardian points to three sections of
the Juvenile Court Act that "embody" the best interests of the
minor mandate and lead to the conclusion that allowing
substitution as of right would frustrate the ability to
effectuate this mandate.
The policy and purpose of the Act is:
"to secure for each minor subject hereto such care
and guidance, preferably in his or her own home, as
will serve the moral, emotional, mental, and physical
welfare of the minor and the best interests of the
community; to preserve and strengthen the minor's
family ties whenever possible ***.
*** In all proceedings under this Act the court
may direct the course thereof so as *** fully to gather
information bearing upon the current condition and
future welfare of persons subject to this Act." 705
ILCS 405/1-2(1) and (2) (West 1994).
The public guardian argues that "[i]f, as a result of
substitution as of right, the cases of individual siblings are
distributed among two or more judges, the difficulty of complying
with this mandate is needlessly multiplied for the child
protection court."
While this argument also has logical appeal -- consolidating
a minor's case before the judge already familiar with the
family's history is intuitive -- it basically repeats the public
guardian's "judicial economy" argument. We initially observe that
the Guardian's argument overestimates the burden caused by
substitution to a different trial court. We are well aware of the
demands inherent in reviewing a case from a "cold" record and
believe our trial courts capable of meeting those demands without
compromising the minor's interests. Moreover, as noted above,
section 2-1001 applies to these proceedings and has been
consistently recognized as creating an almost absolute right to
substitution. Additionally, the public guardian ignores other
language of the Act's purpose that emphasizes "the best interests
of the community" and "future welfare of persons subject to this
Act." (Emphasis added.) 705 ILCS 405/1-2(1)(2) (West 1994).
Certainly, the Act's remedial purpose is not exclusive to the
minor, but also recognizes a parent's right to an impartial
judge. This is served by allowing substitution as of right.
Section 2-10-(10), relating to temporary custody hearings,
provides that where there is an immediate and urgent necessity
for the abused minor to be placed in shelter care, such immediate
and urgent necessity shall be presumed for any other minor
residing in the same household as the abused minor. 705 ILCS
405/2-10-(10) (West 1994).
Additionally, in any hearing under the Act, proof of the
abuse, neglect or dependency of one minor shall be admissible
evidence on the issue of the abuse, neglect or dependency of any
other minor for whom the respondent is responsible. 705 ILCS
405/2-18(3) (West 1994).
The public guardian contends that these sections "manifest a
legislative intent that the child protection court consider the
circumstances of a child's siblings when making determinations
about ordering shelter care for that child." All agree that these
sections establish a presumption of an abusive environment. The
disagreement lies, however, in the public guardian's contention
that the only way to apply the presumption is through the same
individual judge. A second judge, if substitution is granted, can
apply the presumption, and, in fact, the sections may have been
written with this in mind. That is, a second judge less familiar
with a family's history is given the power to presume abuse
exists in a temporary custody setting and use as "admissible
evidence" a prior finding of abuse, neglect or dependency. Thus,
these sections actually serve to alleviate the public guardian's
concerns with the second judge's difficulties assessing a minor's
environment, as they supply procedures whereby that second judge
can use presumptions and admissible evidence arising from an
earlier proceeding in a present proceeding concerning a sibling.
Finally, this court would be breaking new ground in
recognizing the supremacy of the "best interests" mandate over
the plain and unambiguous statutory right to substitution of
judge. We decline this invitation, finding nothing in the
Juvenile Court Act, the Civil Practice Act or case law that
authorizes "joinder" of petitions to form a unified "family"
case.
4. Whether Allowing Substitution as of Right
Will Lead to "Judge Shopping."
It is well established in Illinois that a petition for
substitution of judge as of right comes too late when it is
presented after the judge has ruled on a substantive issue on the
case. Marshall Savings & Loan Ass'n v. Henson, 78 Ill. App. 2d 14
(1966). The policy behind this rule is to preclude a litigant's
attempt to "judge shop" after forming an opinion that the judge
may be unfavorably disposed toward that litigant's cause. In re
Marriage of Talty, 252 Ill. App. 3d 80 (1993), rev'd on other
grounds, 166 Ill. 2d 232 (1995).
Again, no one disputes that a party cannot seek substitution
after the judge has issued a ruling on a substantial issue. The
public guardian is simply returning to its earlier argument that
a subsequent petition filed on behalf of a sibling is an
amendment or continuation of an existing "family" case. We have
determined that this view is unsupported. Instead, the second
petition is a separate, "individual" case.
5. Whether, as Applied in Proceedings Under
the Juvenile Court Act Regarding Sibling Groups,
Section 2-1001(a)(2) Violates the Separation of
Powers Clause in the Illinois Constitution.
The public guardian contends:
"On the basis of unsubstantiated allegations of
prejudice, an Assistant Public Defender can sever the
cases of family members and require two judges to
review the same evidence regarding a single family.
Under these circumstances, the utilization of 2-
1001(a)(2) motions constitutes an unconstitutional
interference with the administration of the judicial
branch, and forces the child protection courts to
engage in piecemeal adjudication of issues vital to the
children and to the potential reunification of their
families."
Put simply, the public guardian argues that the public
defender, a component of the executive branch, uses legislation -
- section 2-1001 -- that impermissibly interferes with the
judiciary's inherent power to administer and supervise the court
system, thereby creating a separation of powers conflict between
the executive branch and the judiciary. This argument is
misplaced.
In People ex rel. Baricevic v. Wharton, 136 Ill. 2d 423
(1990), the State's Attorney filed six timely motions for
substitution of judge as of right (pursuant to section 114-5(c)
of the Code of Criminal Procedure) before a certain judge. The
judge denied those motions, finding that the State was using the
motions to encourage the chief judge to remove him from the
felony docket and that such interference with the chief judge's
assignment power violated the separation of powers clause of the
Illinois Constitution. Wharton, 136 Ill. 2d at 428-29.
Reversing, the supreme court reaffirmed its holding in
People v. Williams, 124 Ill. 2d 300 (1988), that "section 114-
5(c) does not constitute an impermissible legislative
infringement on the judiciary in violation of the separation of
powers doctrine." Wharton, 136 Ill. 2d at 434. However, the court
recognized that, unlike Williams, where the State's Attorney's
use of a section 114-5(c) motion in a single case could not be
said to have anything more than a "peripheral effect on judicial
administration," the State's Attorney's "blanket use" of
substitution motions in all felony proceedings before a
particular judge, when viewed in conjunction with the State's
Attorney's earlier attempts at having that judge reassigned,
"poses a substantial threat to the dignity and independence of
the judiciary." Wharton, 136 Ill. 2d at 435.
In response, the supreme court established a Batson-like
procedure to review, in rare instances, a party's use of
substitution-of-judge motions:
"[w]e find that the following procedure is
appropriate for reviewing whether a prosecutor's use of
section 114-5(c) violates the separation of powers
doctrine. First, the trial judge must determine whether
there is prima facie evidence that the motions are
being used in an effort to thwart the chief judge of
the circuit court's independence in assigning cases to
the judges in his circuit. Among the factors that may
be considered *** are whether the State's Attorney's
office has used, and indicates that it plans to
continue using, section 114-5(c) motions on a blanket
basis in almost every case assigned to the judge;
whether the State's Attorney's office has made other
attempts besides use of section 114-5(c) motions to
have the judge reassigned *** and any other evidence
that indicates that the section 114-5(c) motions are
being used for the purpose of influencing the chief
judge in his assignment decisions.
If the trial judge determines that a prima
facie case does not exist, the section 114-5(c) motion
must be granted." Wharton, 136 Ill. 2d at 438-39.
The evil guarded against in Wharton is the State's abusing
substitution motions to target an individual judge. This "evil"
is not present in the instant case, where substitution would be
case specific.
Thus, although no "Wharton" hearing was held in this case,
and in fact this issue was not raised below, the present case is
distinguishable from Wharton and Williams since no individual
juvenile court judge is targeted.
6. Whether, Since the Supreme Court has Determined
that Postdecree Petitions Under the Illinois
Marriage and Dissolution of Marriage Act do not
Constitute New Actions, the Same Should Hold True
for Subsequent Petitions Under the Juvenile Court Act?
In In re Marriage of Kozloff, 101 Ill. 2d 526 (1984), the
supreme court rejected the rule that postdecree petitions are new
cases, observing a potential for "serious abuse of the venue
act." Kozloff, 101 Ill. 2d at 530. The court found that post-
decree petitions are merely continuations of the dissolution
proceeding; therefore, a substantive ruling on one petition would
preclude a change of venue as of right on another. Kozloff, 101 Ill. 2d at 531.
The public guardian observes commonality between
postdissolution proceedings and proceedings under the Juvenile
Court Act, since both types of proceedings may last years, and
urges this court to adopt the Kozloff rule finding sibling
petitions to be mere continuations of the original abuse and
neglect proceeding.
While a novel argument, it fails for two reasons. First, the
two types of proceedings are distinguishable. A dissolution
proceeding will at its heart always involve the husband and wife,
despite remarriage, stepparents, stepsiblings, half-siblings and
other changes of circumstance. Postdecree petitions will
similarly always relate back to the original divorce judgment or
settlement agreement therein incorporated. Conversely, subsequent
petitions brought on behalf of siblings may involve new and
indispensable parties, e.g., Daniel R., Sr., as well as issues of
"first impression" relating exclusively to the minor subject of
the subsequent petition.
Secondly, Kozloff cannot be used by this court as authority
to alter the status quo of proceedings under the Juvenile Court
Act in light of more recent supreme court decisions directly
addressing the issue of substitution in abuse and neglect
proceedings (see Darnell J., 196 Ill. App. 3d 510, and Dominique
F., 145 Ill. 2d 311) and finding the right applicable and
absolute.
7. Whether the Custom and Practice in the Cook
County Child-Protection Division Demonstrates
that Sibling Groups Under the Jurisdiction of the
Court are Treated as a Unified Family Case.
This argument once again revisits the public guardian's
"judicial economy" argument addressed earlier. As evidence of
custom and practice, the public guardian cites the State's
Attorney's practice of referring to an earlier proceeding in its
petition regarding a "new" sibling petition. No one disputes the
efficacy and correctness of such reference, as such is expressly
authorized by the Juvenile Court Act.
The public guardian also observes that "[c]urrently, the
Clerk of the Circuit Court for the Child Protection Division
assigns a separate number and file jacket for each child for whom
an abuse or neglect petition is filed." This is evidence, which
the public guardian unpersuasively attempts to dismiss as
"administrative nomenclature," that the custom in juvenile court
is to treat each new petition as its own case. This is equally,
if not more, persuasive evidence of current custom and practice
that refutes the public guardian's argument.
In conclusion, although many of the guardian's arguments
make sense and probably would advance the disposition of sibling
petitions, neither statute nor case law provides support for
these arguments. Moreover, no party to this appeal adequately
addresses the rights of Daniel R., Sr., who had nothing to do
with Lazaro or Martha's other children and the environment of
addiction and neglect in which they were forced to live. Yet the
public guardian desires that Daniel R., Sr., and his infant son
be viewed as a "continuation" of the past proceedings.
Because section 2-1001 applies only in the absence of a
specific provision governing substitution of judge as of right in
the context of sibling petitions in the Juvenile Court Act (see
Dominique F., 145 Ill. 2d 311), the appropriate solution to this
"problem" would be for the legislature to amend the Act to
address this issue. It clearly is not the role of this court to
carve out an exception to section 2-1001 when the supreme court
has held that it applies and is absolute in neglect proceedings.
Accordingly, we recognize the right to substitution and affirm
the trial court's order granting Martha and Daniel R., Sr.,
substitution of judge in the instant case.
Affirmed.
THEIS, J., and ZWICK, J., concur.