In re Lu. S. - Case Law

NOTICE
2017 IL App (5th) 160482
Decision filed 05/03/17. The
text of this decision may be NO. 5-16-0482
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
________________________________________________________________________

In re Lu. S. and Le. S., Minors ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Bond County.
)
Petitioner-Appellee, )
)
v. ) No. 15-JA-4
)
D.S., ) Honorable
) Ronald R. Slemer,
Respondent-Appellant). ) Judge, presiding.
________________________________________________________________________

JUSTICE CATES delivered the judgment of the court, with opinion.
Presiding Justice Moore and Justice Overstreet concurred in the judgment and
opinion.

OPINION

¶1 D.S. (Mother) appeals the termination of her parental rights. Because we lack

jurisdiction to review this cause, we must dismiss her appeal.

¶2 A petition for adjudication of wardship was filed in Bond County circuit court on

May 11, 2015, against Mother alleging that the minors, Lu. S. and Le. S., were neglected

based on an injurious environment created by the domestic violence of their parents. The

petition further alleged that the minors were abused and neglected by Mother based on

mental health issues, a prior conviction for a homicide involving her first child in 1995,
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and the inability to make viable decisions concerning the care and welfare of the children.

On June 29, 2015, the minors were adjudicated abused and neglected. On April 25, 2016,

the State filed a petition to terminate the parental rights of Mother with the power to

consent to adoption to be granted to the Department of Children and Family Services.

Mother subsequently was found unfit on May 23, 2016. Following the completion of the

best interests hearing on September 7, 2016, the trial court issued a written order on

September 9, 2016, granting the State’s petition to terminate Mother’s parental rights.

¶3 Mother filed no posttrial motion, no appeal within 30 days of the trial court’s

order, and no motion to extend the time to file a late notice of appeal. A notice of intent

to appeal was filed on behalf of Mother on November 7, 2016, 59 days after entry of the

final judgment. Illinois Supreme Court Rule 660(b) (eff. Oct. 1, 2001) provides that all

appeals from final judgments under the Juvenile Court Act of 1987 (705 ILCS 405/1-1

et seq. (West 2014)), except in cases of juvenile delinquency, are governed by the rules

applicable to civil cases. See also In re Janira T., 368 Ill. App. 3d 883, 891, 859 N.E.2d

1046, 1053 (2006); In re C.J., 325 Ill. App. 3d 502, 504, 758 N.E.2d 335, 336 (2001). To

properly perfect an appeal in a civil case, under Illinois Supreme Court Rule 303 (eff.

Jan. 1, 2015), the notice of appeal must be filed within 30 days after entry of the final

order, unless an extension of the 30-day time limit is granted under subsection (d) of the

rule “[o]n motion supported by a showing of reasonable excuse for failure to file a notice

of appeal on time.” Ill. S. Ct. R. 303(d) (eff. Jan. 1, 2015). See also In re C.J., 325 Ill.

App. 3d at 505, 758 N.E.2d at 336. An order terminating parental rights is a final and

appealable order. In re A.H., 207 Ill. 2d 590, 595, 802 N.E.2d 215, 218 (2003). Here, no

appeal was filed within 30 days of the entry of the written order.

¶4 As the State points out, the record does not show that Mother was admonished of

her rights to appeal. We have found no authority that specifically addresses what

admonishments should be given in this situation. With respect to appeal admonishments

under Illinois Supreme Court Rule 605 (eff. Oct. 1, 2001), however, we do note that the

untimely filing of a notice of appeal is not excused where the appeal admonishments

were deemed faulty. See In re J.T., 221 Ill. 2d 338, 346, 851 N.E.2d 1, 6 (2006).

Therefore, we do not believe that the failure of the record to show that Mother was

admonished of her appeal rights should change the outcome under the circumstances

presented here. Mother did file an appeal but not in a timely manner, despite having other

avenues available for filing a late appeal.

¶5 We are cognizant that Illinois Supreme Court Rule 305(e) (eff. July 1, 2004)

grants an automatic stay for 60 days after entry of the order terminating the parental

rights of any person in a proceeding initiated under the Juvenile Court Act of 1987. The

rule further provides: “If notice of appeal is filed with respect to the termination order

within the 60 days, the automatic stay shall continue until the appeal is complete or the

stay is lifted by the reviewing court. If notice of appeal is not filed within the 60 days, the

automatic stay shall expire.” Ill. S. Ct. R. 305(e)(1) (eff. July 1, 2004). Prior to the

effective date of the rule as it stands now, an aggrieved party whose parental rights had

been terminated had to apply to the circuit court, or to the appellate court, for a stay of the

termination order. See Ill. S. Ct. R. 305(d) (eff. Feb. 1, 1994). Nowhere in the current rule
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does it state that the parent whose rights have been terminated under the Juvenile Court

Act has the right to appeal within 60 days, as opposed to 30 days. The rule provides only

that the order terminating parental rights is automatically stayed for 60 days before the

minor can be adopted, presumably to allow for the usual 30-day appeal plus the 30-day

late notice of appeal. The logic behind the automatic stay is clear. First, the stay removes

any subjectivity from the application for the stay to the circuit or appellate court. Second,

the automatic stay prevents the possibility that a minor is adopted and then the adoption

is set aside after appellate review. Again, Rule 305(e) does not contain any language

allowing for the appeal period to be extended past the 30 days. Allowing 60 days in

which to file an appeal is inconsistent with Illinois Supreme Court Rule 307(a)(6) (eff.

Jan. 1, 2016), which requires that an appeal terminating parental rights under the

Adoption Act (750 ILCS 50/0.01 et seq. (West 2014)) be filed within 30 days. Had the

supreme court intended to carve out an exception to the 30-day rule that is applicable to

every other civil appeal, surely the court would have included specific language to that

effect. The rule, however, has no such language, and we will not extend the right to

appeal where no basis for doing so exists.

¶6 In light of the foregoing, Mother did not file a timely notice of appeal or any

motion requesting leave to file a late notice of appeal. Accordingly, Mother failed to

invoke the jurisdiction of this court, and we must, therefore, dismiss her appeal for want

of appellate jurisdiction.

¶7 We note that pursuant to Illinois Supreme Court Rule 311(a)(5) (eff. Feb. 26,

2010), our decision in this case was to be filed on or before April 6, 2017, absent good
4

cause shown. The briefing schedule was delayed, however, when Mother sought and

received extensions of time in which to file the record on appeal as well as her brief. As a

result, the cause was not fully briefed until the filing date of the decision. Consequently,

we find that good cause exists for issuing our decision after April 6, 2017.

¶8 Appeal dismissed.

2017 IL App (5th) 160482

NO. 5-16-0482

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

Opinion Filed: May 3, 2017
________________________________________________________________________

Justices: Honorable Judy L. Cates, J.

Honorable James R. Moore, P.J., and
Honorable David K. Overstreet, J.,
Concur
________________________________________________________________________

Attorney Anthony E. Dos Santos, Reilly Law, P.C., 241 North Main Street,
for Suite 100, Edwardsville, IL 62025
Appellant
________________________________________________________________________

Attorneys Hon. Christopher Bauer, State’s Attorney, Bond County Courthouse,
for 200 West College Street, Greenville, IL 62246; Patrick Delfino,
Appellee Director, David J. Robinson, Acting Deputy Director, Patrick D. Daly,
Staff Attorney, Office of the State’s Attorneys Appellate Prosecutor,
730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL
62864
________________________________________________________________________