People v. Melvin W.

No. 3--06--0282
_________________________________________________________________
Filed March 27, 2007.
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2007

In re R.W. and S.W., ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
Minors ) Peoria County, Illinois,
)
(The People of the State of )
Illinois, )
) Nos. 05--JA--129 and
Petitioner-Appellee, ) 05--JA--130
)
v. )
)
Melvin W., ) Honorable
) David J. Dubicki,
Respondent-Appellant). ) Judge, Presiding.
_________________________________________________________________

JUSTICE McDADE delivered the opinion of the court:
_________________________________________________________________

The respondent, Melvin W., is the father of the minor

children R.W. and S.W. At the time the State filed its juvenile

petition alleging that the minors were neglected, the respondent

was not living with the children and their mother. The trial

court adjudicated the minors to be neglected because of an

injurious environment and placed them in the care of the

Department of Children and Family Services (DCFS). During a

dispositional hearing, the respondent sought custody of the

children. The court orally announced that it was reserving the
issue of respondent's fitness. The court's written dispositional

order, however, stated that the respondent was "fit but

reserved." The court denied the respondent's request for custody

of his children.

On appeal, the respondent argues that the trial court erred

by (1) denying him custody of the children when it had found him

to be fit; and (2) finding that it was in the children's best

interest to remain in DCFS custody. We affirm and remand with

directions.

BACKGROUND

On June 9, 2005, the State filed two nearly identical

juvenile petitions alleging that R.W. and S.W. were neglected

because of an injurious environment. The petition stated that

the children's mother had left them alone and unsupervised on

several occasions. Although the petition named the respondent as

the father, none of the allegations referred to his conduct.

On September 28, 2005 the court adjudicated the children to

be neglected, and entered an order of default against the

respondent. On that date, the court also issued a dispositional

order in which it found the mother to be unfit, but made no

ruling with regard to the respondent because it found his

paternity at that time to be putative. In the September 28

dispositional order, the court made the children wards of the

court and named DCFS as their guardian.

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 Later, the respondent voluntarily acknowledged paternity of

the minors. The court then granted the respondent's motion to

vacate his default. Consequently, the court held a second

dispositional hearing regarding the respondent on March 21, 2006,

and April 11, 2006. At the conclusion of the April 11

proceeding, the judge said with regard to the respondent,

"I will reserve his fitness.

Now, in terms of placement, I'm going to again

keep DCFS as the guardian. Let me say I don't believe

this is an issue under 227 even though I found him fit

but reserved."

The court issued its written dispositional order that same day.

In the order the court stated that the respondent was "fit but

reserved." In the April 11 order, the court reiterated that the

children were wards of the court and that DCFS was their

guardian. The respondent appealed.

ANALYSIS

The respondent contends that the trial court erred by

denying him custody of the children when it had found him to be

fit.

Once a trial court adjudicates a child to be neglected, the

court shall hold a dispositional hearing. 705 ILCS 405/2--21(2)

(West 2004). If the child is made a ward of the court at the

dispositional hearing, the court shall determine the proper

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disposition. 705 ILCS 405/2--22(1) (West 2004). If the child

was found neglected, the court shall not return the child to the

custody of the parent until the court enters an order finding the

parent to be fit to care for the child. 705 ILCS 405/2--23(1)(a)

(West 2004). If the court determines that the parent is unfit to

care for the child, the court may commit the child to the care of

DCFS. 705 ILCS 405/2--27(1)(d) (West 2004). At the

dispositional phase, the trial court may reserve the issue of a

respondent's fitness. See In re E.L., 353 Ill. App. 3d 894, 819

N.E.2d 1191 (2004).

When a trial court's oral pronouncement is in conflict with

its written order, the oral pronouncement prevails. In re Taylor

B., 359 Ill. App. 3d 647, 834 N.E.2d 605 (2005). A trial court's

disposition that is not authorized by statute is void. In re

D.W., 214 Ill. 2d 289, 827 N.E.2d 466 (2005).

In the present case, the preliminary issue is whether the

trial court found the respondent to be fit, as the respondent

asserts. The respondent contends that the court found him fit

because its disposition was that he was "fit but reserved." This

is a question of law, which we review de novo. See In re Taylor

D., 368 Ill. App. 3d 854, 858 N.E.2d 961 (2006).

In this case, the trial court's initial oral pronouncement

was that the issue of respondent's fitness was reserved. Later,

the court orally stated that it had found the respondent fit but

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reserved. In the written dispositional order, the court stated

that it found the respondent fit but reserved.

First, we note that the statutes concerning the

dispositional phase of juvenile proceedings do not authorize a

finding of "fit but reserved." The statutes only speak of a

finding of fitness or unfitness. See 705 ILCS 405/2--23(1)(a),

2--27(1)(d) (West 2004). Thus, the court's oral pronouncement

and written order stating that the respondent was "fit but

reserved" are void. See D.W., 214 Ill. 2d 289, 827 N.E.2d 466.

The court's oral pronouncement that it was reserving the

issue of respondent's fitness was a valid determination by the

court. See E.L., 353 Ill. App. 3d 894, 819 N.E.2d 1191. This

oral pronouncement took precedence over the court's written order

that the respondent was "fit but reserved." See Taylor B., 359

Ill. App. 3d 647, 834 N.E.2d 605. Thus, the trial court reserved

the matter of the respondent's fitness. We hold, therefore, that

the respondent is incorrect as a matter of law that the trial

court found him to be fit.

Because the trial court reserved the matter of the

respondent's fitness, we need not consider the respondent's

argument concerning whether it was in the best interest of the

children to continue in the custody of DCFS. The court may not

resolve the question of whether the respondent may have custody

of the children until it determines whether the respondent is fit

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or unfit. See 705 ILCS 405/2--23(1)(a), 2--27(1)(d) (West 2004).

Consequently, we remand the matter for the trial court to

determine whether the respondent is dispositionally fit or unfit,

and for further proceedings consistent with this order.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the

Peoria County circuit court and remand the cause with directions.

Affirmed and remanded with directions.

HOLDRIDGE and CARTER, JJ., concur.

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