NO. 4-10-0614 Filed 12/23/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re C.C., So. C., and Sa. C., ) Appeal from
Minors, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Champaign County
Petitioner-Appellee, ) No. 10JA36
v. )
MARLENE LONG, ) Honorable
Respondent-Appellant. ) Richard P. Klaus,
) Judge Presiding.
_________________________________________________________________
JUSTICE POPE delivered the judgment of the court, with
opinion:
At an August 4, 2010, dispositional hearing in a
juvenile neglect case involving three children, the trial court
found respondent grandmother, Marlene Long, who was a party to
this case because of her status as the legal guardian for two of
the children, unable for reasons other than financial circum-
stances alone to care for, protect, train, or discipline the two
children. The court further found the health, safety, and best
interests of these two minors would be jeopardized if they
remained in her custody.
The trial court removed guardianship over the two
children from Long and gave their custody and guardianship to the
guardianship administrator of the Illinois Department of Children
and Family Services (DCFS). The court then dismissed Long as a
party from the case and discharged her court-appointed counsel.
Long appeals, arguing the trial court erred in dismiss-
ing her as a party from the case, which resulted in her being
denied services to become able to exercise guardianship over the
two children. Long makes no arguments regarding the court's
determination it was in the children's best interest to place
them in the guardianship of DCFS. We reverse the trial court's
dismissal of Long as a party to this case.
I. BACKGROUND
In May 2010, the State filed a petition for adjudica-
tion of neglect and shelter care on behalf of C.C. (born May 22,
2002), So. C. (born February 22, 2006), and Sa. C. (born April 4,
2009). This appeal involves only C.C. and So. C. The petition
named Jacqueline Camfield, mother of C.C. and So. C.; Cyrus
Wildman, putative father of C.C. and So. C.; and Marlene Long,
guardian of C.C. and So. C.
According to the petition, Long was awarded guardian-
ship of C.C. in an abuse-neglect case in Piatt County (case No.
04-JA-1). Respondent received guardianship of So. C. on May 23,
2007, in Piatt County case No. 07-P-20. Count III of the State's
petition alleged that C.C. and So. C. were neglected pursuant to
section 2-3(1)(b) of the Juvenile Court Act of 1987 (Juvenile
Court Act) (705 ILCS 405/2-3(1)(b) (West 2008)) because residing
with respondent was injurious to their welfare. This count
alleged respondent left the children in the care of an
inappropriate caregiver. That inappropriate caregiver was their
mother, Jacqueline Camfield. In May 2010, the trial court
appointed a special advocate (CASA) as guardian ad litem for the
minors.
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A shelter-care report prepared on May 5, 2010, by a
child protection investigator noted DCFS was called on May 2,
2010. The caller stated Sa. C. (the third child, who is not at
issue in this appeal) was at risk for harm. The reporter alleged
Camfield and her paramour were involved in a domestic dispute,
which started when the paramour tried to stop Camfield from
leaving to buy cocaine while Sa. C. was asleep upstairs.
The investigator noted she questioned Camfield about
Long's role with the children. Camfield stated Long was C.C. and
So. C.'s legal guardian, but Camfield took care of the children
on weekends and after school until Long got off work. The
investigator spoke with Camfield's father about her concerns for
his grandchildren. The investigator informed Camfield's father
of the five prior indicated reports, which all involved substance
abuse and domestic violence.
Camfield's father stated he had taken Sa. C. after his
daughter's arrest. He said he was concerned Long would return
C.C. and So. C. to Camfield as soon as she was released from
jail. According to the report:
"[Camfield's father] advised he is con-
cerned about [Long's] inability to keep the
children safe. He indicated she has a kind
heart, but, she continues to allow their
daughter, to take care of [C.C.] and [So. C.]
while she works despite her knowledge of
[Camfield's] substance abuse issues. He
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again reiterated that as soon as their daugh-
ter got out of jail, [Long] allowed their
daughter to take care of [So. C.] and [C.C.].
[Camfield's father] and his wife indicated
[Long] had recently contacted them and asked
them to care for the children as well. He
advised he was very concerned that should
some intervention not be taken, [So. C.] and
[C.C.] did not stand a chance in life."
The investigator noted in the report protective custody
was taken of the children from Long because (1) Camfield had
lived with respondent for extended periods of time and had used
alcohol and engaged in behavior that put the children at risk,
and (2) Long had allowed Camfield to take care of the children
even though she knew about Camfield's substance-abuse problems.
Long told the investigator she had been a stable
caregiver for C.C. and So. C. since they were infants and had
never allowed drugs or alcohol in her home. While Long admitted
she knew about Camfield's substance-abuse issues, Camfield drank
and abused drugs elsewhere. Long stated she had always been the
children's caregiver. Long told the investigator Camfield picked
the children up from school and watched them until Long got home
from work. Long indicated she was the person who first turned
her daughter in to DCFS. Long informed the investigator Camfield
was no longer welcome to live in Long's home and she had no room
for Camfield after downsizing her home.
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The report noted Cyrus Wildman, father of C.C. and So.
C., had signed a consent making Long the guardian of C.C. and So.
C. He had no contact with the children. However, Wildman's wife
told the investigator they had been trying to get in touch with
the children, but no one would return their calls.
The investigator recommended C.C. and So. C. be placed
in the temporary custody of DCFS. On May 6, 2010, the trial
court placed temporary custody of the children with the
guardianship administrator for DCFS. The court granted Camfield,
Wildman, and Long supervised visitation with the children.
At a July 7, 2010, hearing, Camfield stipulated to
count II of the petition for adjudication of neglect; Wildman
waived his right to an adjudicatory hearing; and Long stipulated
to count III of the petition. Long waived adjudication.
In August 2010, the CASA filed a dispositional-hearing
report. The report noted C.C. and So. C. were currently in
relative foster placement with their paternal grandfather and his
wife. The children had separate weekly supervised visits with
Camfield and Long. The report noted C.C. and So. C. were healthy
and well-groomed, appropriately developed for their age, and had
no apparent physical problems.
The report noted Camfield was unemployed and had
entered a 30-day treatment program in Charleston, was attending
Narcotics Anonymous, and had a Narcotics Anonymous sponsor. The
CASA noted Camfield stated she wanted to parent her children and
was willing to make the necessary changes in her life to be able
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to do so. Camfield said her mother made it too easy for her not
to parent her children. According to the report, Camfield had no
physical or medical limitations preventing her from parenting.
The report indicated Cyrus Wildman had little interac-
tion with the children. Wildman had convictions for possesion of
Ritalin, possession of cannabis, and possession of paraphernalia.
Wildman had also been incarcerated. He currently worked as a
general laborer and machine operator and lived in Monticello.
Wildman claimed he did not parent the children because of his
time in prison, his time working in Pennsylvania, Long's refusal
to grant visitation, his inability to afford an attorney to
pursue his parental rights, and the fact the children lived in
Mississippi with Camfield and Long for two years.
The CASA listed the following concerns in her report:
"The co-dependent relationship of
Marlene Long and [Camfield] has promoted,
condoned and enabled [Camfield's] continued
substance abuse. [Camfield] is unemployed,
has no transportation and has not lived inde-
pendently from her mother as a full[-]time
parent to her children since their births.
She has not demonstrated a willingness to
parent, to assume guardianship of her chil-
dren[,] or to make the choice to abstain from
substance abuse. Nor, does it seem, has
Marlene Long promoted her daughter's inde-
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pendence.
Cyrus Wildman currently holds a full
[-]time job. He is actively participating in
his own intact family. He admits the error
of his past choices. He has recently moved
into different housing to accommodate the
possibility of his two children having visits
or living with him. Cyrus admits to owing
$30,000 in back child support for [C.C.] and
[So. C.]. He is underemployed in an unstable
economy but appears motivated to work hard.
He has recently undergone an [e]valuation for
[s]ubstance [a]buse at Piatt County Mental
Health and submitted a drug screen. The
results are pending as of the date of this
report. Cyrus states he does not use any
drugs and only occasionally has a beer.
There remains, however, that [C.C.] and [So.
C.] are not well bonded with their father.
They have had limited visitations with their
father. They have never even had an over-
night visit with him.
* * *
Although this hearing will address
the immediate issue of guardianship, the
future permanency goal must be considered in
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advance. With two biological parents able
and supposedly willing to parent this impend-
ing permanency goal for [C.C.] and [So. C.]
must consider a 'return home to a biological
parent' as a first choice placement. If
neither biological parent is able or willing
to parent, then an alternate or substitute
parent must then be considered.
* * *
The impending permanency goal to be
considered does not allow 'return home to
grandmother.' If, at the [d]ispositional
hearing or at a future permanency hearing,
neither parent wishes to assert parental
rights to parent or if neither parent has
made reasonable effort to meet parenting
goals, then a substitute parent, such as
grandmother, can be considered.
At the present point, however, it weighs
upon both the biological parents of [C.C.]
and [So. C.], Jackie Camfield and Cyrus
Wildman, *** to demonstrate willingness to
parent with conviction and application. A
return to grandmother's guardianship may well
become a reality in the lives of these chil-
dren. In that case, the cyclical pattern
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already established of mother and grandmother
codependence will again take place."
The CASA recommended the trial court take guardianship
and wardship of the three minor children at issue and place them
in the custody of DCFS. The CASA also recommended the trial
court remove Long as C.C. and So. C.'s guardian and dismiss her
as a party in the case. In addition, the CASA recommended Long's
scheduled visitation with the children be discontinued. Accord-
ing to the CASA:
"Such visits are disruptive to the children's
lives and the grandmother's continued inser-
tion into the parenting triad is confusing
and undermining to establishing primary
parenting of the biological parents. Marlene
Long should be permitted to have some visita-
tion since she has an important relationship
with the children[;] however, this visitation
should not be equal to the parents or as
frequent. Allowing a monthly visitation
would seem appropriate to maintaining the
established bonds between grandmother and her
grandchildren. These visits should remain
supervised."
According to a home and background report prepared by
Catholic Charities, Long had attended all of the scheduled weekly
visits with the children. The report noted visitation appeared
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to be going very well and the children were very excited to see
her. The report noted:
"When asked about her current DCFS involve-
ment, Ms. Long discussed the recent arrest of
Ms. Camfield and expressed her surprise over
the discovery of Ms. Camfield's ongoing drug
use. Ms. Long talked about Ms. Camfield
living with her until February 2010 and al-
lowing Ms. Camfield to watch [C.C.] and [So.
C.] intermittently while Ms. Long was work-
ing. Ms. Long acknowledged a strained rela-
tionship between her and Ms. Camfield due to
her guardianship of [C.C.] and [So. C.] She
also said that being the primary caregiver
for her grandchildren was difficult, and she
considered shifting guardianship to Mr.
Camfield in the past. Ms. Long emphasized
her focus on whatever is best for her
grandchildren, while also stating her wish to
provide the caregiver role for [C.C.] and
[So. C.] again."
Catholic Charities recommended DCFS be granted custody and
guardianship over C.C. and So. C.
In August 2010, the trial court entered a dispositional
order, finding it in the children's best interests they be made
wards of the court and adjudged neglected. The court found both
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Camfield and Wildman unfit and unable to care for, protect, and
train, or discipline the minors. The court found Long unable to
care for, protect, and train or discipline the minors. The court
ruled it was in C.C.'s and So. C.'s best interests that custody
and guardianship be removed from the respondent parents and
placed with DCFS. The court dismissed Long as a party to the
case and discharged her counsel.
This appeal followed.
II. ANALYSIS
Long argues the trial court erred in determining
removal of Long's guardianship of C.C. and So. C. automatically
terminated her status as a party and her ability to partake of
services. She does not appeal the court's finding it was in the
children's best interests to be made wards of the court, the
court's finding she was unable to care for the children, or the
court's decision to name the guardianship administrator for DCFS
as the children's guardian.
Long argues that as legal guardian, legal custodian,
and a responsible relative, her right to remain a party in this
case is clearly evident. Long cites In re Anast, 22 Ill. App. 3d
750, 318 N.E.2d 18 (1974), in support of her argument.
In Anast, the biological parents of the children at
issue divorced. Anast, 22 Ill. App. 3d at 752, 318 N.E.2d at 19.
The mother was awarded custody of the couple's two children.
Anast, 22 Ill. App. 3d at 752, 318 N.E.2d at 19. She then
married the appellant, Alan Stone. Anast, 22 Ill. App. 3d at
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752, 318 N.E.2d at 19. Stone and the mother later divorced and
Stone was awarded custody of his two stepdaughters, ages 15 and
13. Anast, 22 Ill. App. 3d at 752, 318 N.E.2d at 19-20. Two
months later, petitions for adjudication of wardship were filed
on behalf of Stone's stepdaughters. Anast, 22 Ill. App. 3d at
752, 318 N.E.2d at 20. The petition did not name Stone as a
respondent. Anast, 22 Ill. App. 3d at 752, 318 N.E.2d at 20.
DCFS was given temporary custody of the two girls.
Anast, 22 Ill. App. 3d at 752, 318 N.E.2d at 20. Stone later
appeared and signed a waiver of service and defects in process.
Anast, 22 Ill. App. 3d at 752, 318 N.E.2d at 20. The State
argued because Stone was not a natural parent, he was not enti-
tled to an adjudicatory hearing to determine his fitness before
depriving him of custody, and the trial court agreed. Anast, 22
Ill. App. 3d at 753, 318 N.E.2d at 20.
Although Stone was not a blood relative of the girls,
he had legal custody of them pursuant to the divorce action. As
a result, the appellate court found:
"He was entitled to an adjudicatory hearing
on the issue of his fitness before being
deprived of custody by the court's
adjudication of wardship. To hold otherwise
would ignore the intent of the statute and
the constitutional rights of Stone to due
process and the equal protection of the
laws." Anast, 22 Ill. App. 3d at 754, 318
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N.E.2d at 21.
The statute under which the case was tried did not state any one
individual was required to be made a party respondent. Anast, 22
Ill. App. 3d at 754, 318 N.E.2d at 21. However, the court found
the statute
"obviously contemplates that if a minor is
under legal guardianship at the time a peti-
tion is filed under the Act, the guardian
should be named. The reasons why are appar-
ent in this case, where an adjudication of
neglect against the natural parents was vir-
tually an empty act. They had already sur-
rendered legal custody in earlier proceed-
ings, and their inaction manifested their
disinterest in the outcome of this one. But
natural parents are not the only persons who
may have a substantial interest in the wel-
fare of minors. Numerous references appear
in the Act listing in the conjunctive or
disjunctive a whole constellation of poten-
tially interested persons: the parents,
guardian, legal custodian and/or a responsi-
ble relative. The category relevant to a
particular case is presumed to be participat-
ing in proceedings under the Act." Anast, 22
Ill. App. 3d at 754, 318 N.E.2d at 21.
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The court found Stone was entitled to an adjudicatory
hearing as a matter of due process by virtue of his interest in
the two girls. The court stated refusing him that procedure and
imposing upon him the burden of affirmatively winning custody of
the girls in a later proceeding was a denial of the equal protec-
tion of the law. Anast, 22 Ill. App. 3d at 756, 318 N.E.2d at
22. According to the court:
"Where the circustances of a case indi-
cate that a person other than a parent has a
substantial interest in a minor in proceed-
ings in the juvenile court, then under the
contemplation of the Act that person is a
necessary party to the proceedings. Stone
was such a person; as legal custodian and
stepparent of the two Anast girls he was
entitled to the procedural protections inci-
dent to an adjudicatory hearing [citation] on
the issue of his fitness to retain custody."
Anast, 22 Ill. App. 3d at 756, 318 N.E.2d at
22.
Unlike in Anast, in this case, Long was named as a
respondent and did receive an adjudicatory hearing. She stipu-
lated to leaving the children with an inappropriate caregiver at
the July 2010 adjudicatory hearing.
The issue in this case is whether the trial court erred
in dismissing Long as a party after a dispositional hearing in
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which it found her unable to act as a custodian for the children
and placed the children under the guardianship of the guardian-
ship administrator of DCFS. According to Long, section 2-28 of
the Juvenile Court Act (705 ILCS 405/2-28 (West 2008)) "clearly
envisions that a guardian may be returned to that status."
However, the State cites the Third District's opinion
in In re S.B., 373 Ill. App. 3d 224, 866 N.E.2d 1286 (2007), as
support for its argument the trial court properly dismissed Long
from the case. In S.B., C.L. was the guardian of S.B, who was
born on January 20, 2000. S.B.'s mother was deceased, and his
father was serving a 20-year prison sentence. S.B., 373 Ill.
App. 3d at 225, 866 N.E.2d at 1287. The opinion noted the record
did not reveal when or how C.L. became S.B.'s guardian. S.B.,
373 Ill. App. 3d at 225, 866 N.E.2d at 1287.
The State filed a juvenile petition alleging S.B. was
neglected because he was exposed to an injurious environment
while in C.L.'s care. S.B., 373 Ill. App. 3d at 225, 866 N.E.2d
at 1287. According to the petition, C.L. had left S.B. unat-
tended on November 19 and 20, 2004, and C.L.'s whereabouts were
unknown between November 17 and November 22, 2004. S.B., 373
Ill. App. 3d at 225, 866 N.E.2d at 1287. C.L. was named as a
respondent as she was the child's guardian. S.B., 373 Ill. App.
3d at 225, 866 N.E.2d at 1287.
After the trial court found S.B. to be neglected, S.B.
was taken into shelter care. S.B., 373 Ill. App. 3d at 225, 866
N.E.2d at 1287. The court later issued a dispositional order,
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finding C.L. unfit to care for S.B., making S.B. a ward of the
court, and naming DCFS as S.B.'s guardian. S.B., 373 Ill. App.
3d at 225, 866 N.E.2d at 1287.
In the dispositional order, the trial court found C.L.
had gotten drunk and used crack cocaine while she left S.B.
unattended. S.B., 373 Ill. App. 3d at 225, 866 N.E.2d at 1287.
The order also noted C.L.'s failure to visit S.B. since he was
taken into shelter care. S.B., 373 Ill. App. 3d at 225, 866
N.E.2d at 1287. Instead of dismissing C.L. from the case at that
time as the State requested, the court ordered C.L. to undertake
certain tasks, including undergoing a drug and alcohol assess-
ment, completing any recommended treatment as a result of the
assessment, and submitting herself to random urine tests and a
psychological examination. S.B., 373 Ill. App. 3d at 225, 866
N.E.2d at 1287.
In its first permanency review order, the trial court
found the previous permanency goal of returning S.B. to C.L.'s
home within one year had not been met and that C.L. had not made
reasonable efforts toward achieving the permanency goal. S.B.,
373 Ill. App. 3d at 225, 866 N.E.2d at 1287. The court estab-
lished a new permanency goal of returning S.B. to C.L.'s home
pending a status hearing and again denied the State's request to
dismiss C.L. from the case. S.B., 373 Ill. App. 3d at 225, 866
N.E.2d at 1287.
In its second permanency review order, the trial court
found the prior permanency goal had not been achieved, and C.L.
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had not made reasonable efforts toward achieving the permanency
goal. S.B., 373 Ill. App. 3d at 226, 866 N.E.2d at 1287. The
court changed the permanency goal to substitute care and granted
the State's request to dismiss C.L. from the case because of her
failure to make reasonable efforts toward the permanency goals
established by the court. S.B., 373 Ill. App. 3d at 226, 866
N.E.2d at 1287-88.
C.L. appealed, arguing the trial court erred in
dismissing her from the case. S.B., 373 Ill. App. 3d at 226, 866
N.E.2d at 1288. Relying on this court's decision in In re A.K.,
250 Ill. App. 3d 981, 620 N.E.2d 572 (1993), and its application
of section 1-5(2)(a) of the Juvenile Court Act (705 ILCS 405/1-
5(2)(a) (West 2004)), the Third District affirmed the dismissal.
S.B., 373 Ill. App. 3d at 227-28, 866 N.E.2d at 1289. According
to the Third District's opinion:
"At the time of the dismissal, C.L. was
no longer S.B.'s guardian, but she was a
previously appointed relative caregiver.
Thus, under section 1-5(2)(a), C.L. had the
right to be heard by the court concerning the
juvenile matter. See 705 ILCS 405/1-5(2)(a)
(West 2004); A.K., 250 Ill. App. 3d 981, 620
N.E.2d 572. However, she did not have the
right to be a party to the proceedings. See
705 ILCS 405/1-5(2)(a) (West 2004); A.K., 250
Ill. App. 3d 981, 620 N.E.2d 572. Therefore,
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we hold that the trial court did not err as a
matter of law by dismissing C.L. from the
case in the second permanency review order
after the dispositional order. See 705 ILCS
405/1-5(2)(a) (West 2004); A.K., 250 Ill.
App. 3d 981, 620 N.E.2d 572." S.B., 373 Ill.
App. 3d at 227, 866 N.E.2d at 1289.
The Third District relied in part on the following
language from section 1-5(2)(a) of the Juvenile Court Act (705
ILCS 405/1-5(2)(a) (West 2004)):
" 'Though not appointed guardian or legal
custodian or otherwise made a party to the
proceeding, any current or previously ap-
pointed foster parent or relative caregiver,
or representative of an agency or association
interested in the minor has the right to be
heard by the court, but does not thereby
become a party to the proceeding.' " S.B.,
373 Ill. App. 3d at 227, 866 N.E.2d at 1288,
quoting 705 ILCS 405/1-5(2)(a) (West 2004).
However, this language, which has not changed since the Third
District decided S.B., does not support a trial court's decision
to dismiss a guardian who is already a party to the proceedings.
Section 1-5(2)(a) is only meant to give certain individuals who
are not already parties to the proceeding a right to be heard by
the court.
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The Third District misinterpreted this court's decision
in A.K. on which it also relied. The State did the same in its
brief to this court. Both the Third District and the State focus
on the fact this court affirmed a trial court's dismissal of a
named party. However, while this court did affirm the dismissal,
this court's decision to affirm was based on the lack of preju-
dice due to the specific facts relating to the dismissed party in
that case.
Both the Third District and the State overlooked impor-
tant language from this court's decision stating the proper
process would have been to allow the named party to remain as a
party in the case. In A.K., Brenda and Randy Kirchner were in
the midst of dissolution proceedings when Brenda's grandmother
filed a petition under the Act alleging that A.K., who was born
to Brenda during the marriage, was an abused child because
"Brenda had struck and choked the child and Randy was 'not an
appropriate custodian.'" A.K., 250 Ill. App. 3d at 983, 620
N.E.2d at 574. Both Brenda and Randy were joined as respondent
parents. A.K., 250 Ill. App. 3d at 983, 620 N.E.2d at 574.
During the proceedings, the trial court entered an
order finding Randy was not the biological father of A.K. A.K.,
250 Ill. App. 3d at 983, 620 N.E.2d at 574. The court later
dismissed Randy from the case. A.K., 250 Ill. App. 3d at 983,
620 N.E.2d at 574.
In reviewing the trial court's actions, this court
stated "the proper practice would have been to permit Randy to
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remain in the juvenile proceeding with opportunity to be heard
until an order final as to all parties was entered." A.K., 250
Ill. App. 3d at 984, 620 N.E.2d at 575. This court noted the
legislative scheme behind the Juvenile Court Act is silent "as to
the position of a presumed father once the presumption is rebut-
ted." A.K., 250 Ill. App. 3d at 987, 620 N.E.2d at 577. The
court found the statutory scheme ambiguous with regard to someone
in Randy's position. Because this court found the statutory
scheme ambiguous, it looked at the legislature's intent and found
the legislature meant for someone in Randy's position to be able
to participate until the case is concluded. A.K., 250 Ill. App.
3d at 988, 620 N.E.2d at 577.
This court stated the object of a proceeding pursuant
to section 2-29 of the Juvenile Court Act (Ill. Rev. Stat. 1989,
ch. 37, par. 802-29) as it read at that time was to determine
whether a child's parents have surrendered their parental rights
or been found to be unfit parents, and, if so, whether it is in
the child's best interest to appoint a guardian with the power to
consent to the adoption of the child. A.K., 250 Ill. App. 3d at
988, 620 N.E.2d at 577.
This court noted a man who was married to the child's
mother at the time of the child's birth would likely have impor-
tant information he could provide to the court regarding the
child's best interests after the termination of the natural
parent's rights. A.K., 250 Ill. App. 3d at 988, 620 N.E.2d at
577-78. This would especially be the case when the presumed
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father and the child had lived together for an extended period of
time and the man had acted as the child's father. A.K., 250 Ill.
App. 3d at 988, 620 N.E.2d at 578. According to this court:
"Strong bonds may have developed between that
man and the child which should be considered
in regard to the child's future if the for-
merly purported father is a good person. ***
Although the State's Attorney representing
the petitioner and the guardian ad litem or
attorney for the child are under a duty to
look out for the best interests of the minor,
the continued participation of the one who
was presumed to be the child's father can
give the court a more balanced picture of the
situation.
Any formerly presumed father who might
qualify under the law of other States as an
'equitable parent' would benefit by remaining
in a section 2-29 proceeding until all issues
are resolved because he would have an oppor-
tunity to persuade the court to frame its
dispositional order in such a way as to be
consistent with any ability he might have to
adopt the child. By keeping such a person in
the section 2-29 proceeding to the end, he
obtains some of the protections which the
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'equitable parent' rule might give him while,
at the same time, the State is relieved of
the burden of establishing his unfitness when
the child's best interests appear not to
include any role for the formerly presumed
father. Thus, our determination that once
the presumed father is brought into the sec-
tion 2-29 proceeding he can remain in the
proceeding after the presumption of parentage
is rebutted serves not only to protect that
individual but also to promote the stated
legislative purpose of serving the best in-
terests of the child.
When we state that a formerly presumed
father is entitled to remain in the case, we
mean that he should be treated as a party
entitled to notice of hearing and to present
evidence, cross-examine witnesses and make
argument. He would have a right to appeal,
but on appeal he could only complain of a
denial of the foregoing rights." A.K., 250
Ill. App. 3d at 988-89, 620 N.E.2d at 578.
While this court affirmed the dismissal, it did so
because it found Randy suffered no prejudice by being dismissed
based on the record in that case. The record showed Randy was
convicted in 1987 of two counts of battery against a seven-year-
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old child. A.K., 250 Ill. App. 3d at 989, 620 N.E.2d at 578. He
had previously been placed on probation for disorderly conduct.
In addition, he had been found neglected when he was a juvenile
and in need of supervision because of instances of sexual contact
between him and minors. A psychiatric examination report indi-
cated he was mildly retarded, displayed emotional immaturity and
an inability to exercise proper parenting skills due in part to
his mental limitations, and needed therapy to control his sexual
acting out. A.K., 250 Ill. App. 3d at 989, 620 N.E.2d at 578.
The court also noted the marriage lasted only three years. As a
result, the court determined Randy's further participation would
not have changed the result in the case or enabled him to have a
closer relationship with A.K. A.K., 250 Ill. App. 3d at 989-90,
620 N.E.2d at 578. However, we specifically held Randy should
not have been dismissed from the case. A.K., 250 Ill. App. 3d at
989, 620 N.E.2d at 578. Unlike in A.K., we cannot say Long and,
more importantly, the children will not be prejudiced by Long's
dismissal.
Just as the Juvenile Court Act is silent as to the
position of a presumed father once the presumption is rebutted,
the Act does not specifically address the status of a guardian
who is a necessary party to the proceeding where the trial court
appoints DCFS as guardian. However, we find the legislature
intended for a minor's legal guardian to remain a party through-
out the proceedings, regardless of whether the trial court names
DCFS as guardian.
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Section 1-5(1) of the Juvenile Court Act states:
"[T]he minor who is the subject of the
proceeding and his parents, guardian, legal
custodian or responsible relative who are
parties respondent have the right to be pres-
ent, to be heard, to present evidence mate-
rial to the proceedings, to cross-examine
witnesses, to examine pertinent court files
and records and also, although proceedings
under this Act are not intended to be adver-
sary in character, the right to be repre-
sented by counsel. *** Counsel appointed for
the minor and any indigent party shall appear
at all stages of the trial court proceeding,
and such appointment shall continue through
the permanency hearings and termination of
parental rights proceedings subject to
withdrawal or substitution pursuant to Su-
preme Court Rules or the Code of Civil
Procedure." (Emphases added.) 705 ILCS
405/1-5(1) (West 2008).
This section gives a guardian not only party status but also
legal representation throughout all of the proceedings. The
General Assembly could not have intended a guardian, legal
custodian, or responsible relative, who the Juvenile Court Act
requires the State to name as a respondent, could simply be
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dismissed as a party if guardianship of the child was awarded to
DCFS at a dispositional hearing.
It is in the children's best interest Long be allowed
to remain as a party in this case for many of the same reasons
this court thought a presumed father should be allowed to remain
a party even after the presumption of paternity is rebutted. If
the trial court decides to terminate the parental rights of the
minors' parents, Long will likely be able to provide the court
with important information regarding the children's best inter-
ests. She may also decide to seek the restoration of her guard-
ianship.
According to the record in this case, Long had been the
primary caregiver for these children most of their lives and
strong bonds existed between Long and the children. While she
stipulated to count III of the State's petition, which alleged
she left the children in the care of an inappropriate caregiver,
i.e., their biological mother, the report prepared by Catholic
Charities noted Long expressed surprise over the discovery of
Camfield's ongoing drug use.
Long's behavior was much more benign than the guardian
C.L.'s behavior in S.B. In that case, C.L. had gotten drunk and
used crack cocaine while the minor was left unattended. S.B.,
373 Ill. App. 3d at 225, 866 N.E.2d at 1287. However, even in
that case, the trial court did not immediately dismiss C.L. after
entering the dispositional order naming DCFS as the minor's new
guardian. S.B., 373 Ill. App. 3d at 224, 866 N.E.2d at 1286.
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Instead, the first permanency goal implemented was returning the
minor to C.L.'s home within one year. S.B., 373 Ill. App. 3d at
225, 866 N.E.2d at 1287. Only in its second permanency review
order did the trial court grant the State's motion to dismiss
C.L. as a party because of her failure to make reasonable efforts
toward the permanency goals. S.B., 373 Ill. App. 3d at 226, 866
N.E.2d at 1287-88.
In this case, the record does not show any court order
placing restrictions on Long allowing the biological mother to
watch the children. In addition, this does not appear to be a
case in which she placed the children in Camfield's care so she
could go out and socialize. According to the Catholic Charities
report, Long let Camfield watch the children intermittently while
Long was working.
The report noted Long had attended all visits with the
children that had been offered. The report stated the visits
appeared to go well. According to the report, "Ms. Long comes to
the car and greets the children outside before even entering the
home. The children appear very excited to see her. They give
Ms. Long hugs and kisses."
It is in the children's best interests Long should be
allowed to remain a party in this case. She is entitled to
notice of hearings and to present evidence, cross-examine wit-
nesses, and present arguments. Further, she is entitled to keep
her court-appointed counsel, if she cannot afford to hire her
own, and any other services to which she is entitled under the
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Juvenile Court Act.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
decision to dismiss Long as a party to these proceedings.
Reversed.
TURNER and MYERSCOUGH, JJ., concur.
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