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THIRD DIVISION
Filed: 06/25/03

 
JUSTICE HOFFMAN delivered the opinion of the court:

The State brings the instant appeal from a circuit court order dismissing without prejudiceits petition for adjudication of wardship of Tiona W., a minor. For the reasons which follow, wedismiss the appeal for lack of jurisdiction.

On September 25, 2001, the State filed a petition for adjudication of wardship of Tiona W.,naming Tiara W. and Nathaniell P. as respondents. In its petition, the State alleged that Tiona W.was born on January 22, 2001, with "special medical needs" and that her mother, Tiara W., hadfailed to consistently visit her in the hospital or to complete necessary medical training. The Statefurther alleged that, on or about September 21, 2001, Tiara W. refused to give her consent to hospitalpersonnel for "a necessary medical procedure" for her daughter. The State also asserted that TionaW.'s father, Nathaniell P., was incarcerated. Based upon these facts, the State alleged that Tiona W.was both a neglected minor pursuant to section 2-3(1)(a) and (b) of the Juvenile Court Act (Act) (705ILCS 405/2-3(1)(a), (b) (West 2000)) and an abused minor as defined by section 2-3(2)(ii) of the Act(705 ILCS 405/2-3(2)(ii) (West 2000)).

On September 25, 2001, the trial court conducted a temporary custody hearing pursuant tosection 2-10 of the Act (705 ILCS 405/2-10 (West 2000)). Neither respondent was present for thehearing. Following the hearing, the trial court awarded temporary custody of Tiona W. to D. JeanOrtega Piron, Guardianship Administrator of the Department of Children and Family Services. Thecourt also entered an order appointing the Cook County Public Guardian as attorney and guardianad litem for Tiona W.

On October 1, 2001, Nathaniell P. was served with a copy of the petition for adjudication ofwardship and a summons via registered mail while in jail in Minnesota. On January 8, 2002,Nathaniell P. appeared in court personally and through counsel. Tiara W. appeared and waspersonally served with the petition for adjudication of wardship. Also on that date, the trial court,at the request of Nathaniell P., ordered paternity testing. The case was continued to February 28,2002. On that date, the trial court made a finding, based upon the results of the paternity test, thatNathaniell P. is Tiona W.'s father. The court also conducted a case management conference andcontinued the matter to April 2, 2002, for an adjudicatory hearing.

On April 2, 2002, Tiara W. appeared personally and through counsel and Nathaniell P.appeared through counsel. Nathaniell P.'s counsel explained to the trial court that his client wasincarcerated in Minnesota and requested a continuance. The court allowed the parties an opportunityto attempt to arrange for Nathaniell P. to participate in the hearing via telephone. When theseattempts failed, the trial court denied the request for a continuance and proceeded with theadjudicatory hearing. At the conclusion of the State's evidence, Tiara W.'s counsel moved for adirected finding, and Nathaniell P.'s counsel joined in that motion. The trial court took the motionunder advisement and continued the case to May 8, 2002.

On May 3, 2002, Nathaniell P. filed a motion to dismiss the petition for adjudication ofwardship pursuant to section 2-14 of the Act (705 ILCS 405/2-14 (West 1994)). At that time, section2-14(b) of the Act provided that "an adjudicatory hearing shall be held within 90 days of the date ofservice of process upon the minor, parents, any guardian and any legal custodian ***." 705 ILCS405/2-14(b) (West 1994).⁽¹⁾ Section 2-14(c) of the Act further provided that "[i]f the adjudicatoryhearing is not heard within the time limits required ***, upon motion by any party the petition shallbe dismissed without prejudice." 705 ILCS 405/2-14(c) (West 1994). On May 8, 2002, the trialcourt heard arguments on the motion to dismiss. Nathaniell P. argued that the petition must bedismissed because the adjudicatory hearing had not been completed within 90 days of January 8,2002, the date on which Tiara W. had been served.

Relying on In re S.G., 175 Ill. 2d 471, 677 N.E.2d 920 (1997), where our supreme courtinterpreted this version of section 2-14(b) as requiring that an adjudicatory hearing be completed andnot merely commenced within 90 days of service of process, the trial court granted the motion anddismissed the petition for adjudication of wardship of Tiona W. without prejudice. The transcriptof the hearing on the motion to dismiss reflects that the State requested that the trial court stay itsruling in this regard "for approximately one hour" to allow the State "to do the mechanicalpaperwork *** to refile the case to bring it back into the system." The trial court granted thisrequest, and stayed the dismissal of the petition for adjudication for one hour. The case wassubsequently recalled, at which time the trial court inquired as to whether the State needed a stay anylonger. The State responded that it did not, and the trial court then dismissed the petition foradjudication of wardship without prejudice. The following day, the State filed a notice of appealfrom the dismissal order.

On appeal, the State raises several arguments in urging us to reverse the trial court's orderdismissing the petition for adjudication of wardship of Tiona W. First, the State asserts that we mustapply an amended version of section 2-14 of the Act, which provides that an adjudicatory hearingneed only be commenced, not completed, within 90 days of service of process being completed. Theamendment upon which it relies is contained in Public Act 92-822, which became effective onAugust 21, 2002, after the trial court dismissed the petition in this case, but which states that itapplies to all actions pending on or after January 1, 1998. Pub. Act 92-822, eff. August 21, 2002(reenacting 705 ILCS 405/2-14)). Alternatively, the State asserts that the trial court erred indismissing the petition for adjudication because: (1) Nathaniell P. should not have been consideredserved, and the 90-day time period in which the hearing was to be held should not have startedrunning, until his paternity was established; (2) even if Nathaniell P. was considered to have beenserved before paternity was established, the 90-day time period was tolled during the time in whichthe paternity testing was being conducted; (3) the parties waived the 90-day statutory timerequirement; and (4) the trial court erred in granting the dismissal where Nathaniell P. intentionallydelayed the proceedings for the purpose of obtaining a dismissal pursuant to section 2-14 of the Act. As we will explain, however, we need not reach the merits of the State's arguments.

Initially, we note that the State has not included in its brief a statement of jurisdiction, asrequired by Supreme Court Rule 341(e)(4)(ii) (188 Ill. 2d R. 341(e)(4)(ii)). Respondent Tiara W.has not filed a brief with this court, and respondent Nathaniell P. has filed a brief but has notchallenged this court's jurisdiction. Nonetheless, this court has an independent duty to considerwhether it has jurisdiction over an appeal and to dismiss the appeal if it finds that jurisdiction islacking. Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539, 470 N.E.2d 290 (1984). Subject to certain exceptions for appeals from interlocutory orders provided for by supreme courtrules not applicable in this case⁽²⁾, this court's jurisdiction is limited to review of final orders of a trialcourt. Flores v. Dugan, 91 Ill. 2d 108, 112, 435 N.E.2d 480 (1982); see Official Reports AdvanceSheet No. 21 (October 17, 2001), R. 660, amended effective October 1, 2001 (appeals from finaljudgments in proceedings under Juvenile Court Act are governed by rules applicable to civil cases). A final judgment or order is "a determination by the court on the issues presented by the pleadingswhich ascertains and fixes absolutely and finally the rights of the parties in the lawsuit." Towns v.Yellow Cab Co., 73 Ill. 2d 113, 119, 382 N.E.2d 1217 (1978). That is not to say that a judgment ororder must be addressed to the merits of the of the action in order to be considered final. Rather:

" 'A final judgment means, not a final determination of the rights of theparties with reference to the subject matter of the litigation, but merely of their rightswith reference to the particular suit. It is not at all necessary that the judgment shouldbe upon the merits, if it definitely puts the case out of court. It is the termination ofthe particular action which marks the finality of the judgment.' " Physicians InsuranceExchange v. Jennings, 316 Ill. App. 3d 443, 455, 736 N.E.2d 179 (2000), quotingMutual Reserve Fund Life Ass'n v. Smith, 169 Ill. 264, 265, 48 N.E. 208 (1897).

Ordinarily, an order dismissing a complaint without prejudice is not deemed final forpurposes of appeal. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 76, 588 N.E.2d 1139 (1992); J. Eck & Son, Inc, v. Reuben H. Donnelley Corp., 188 Ill. App. 3d 1090 (1989); InternationalInsurance Co. v. Morton Thiokol, Inc., 185 Ill. App. 3d 686, 691, 542 N.E.2d 6 (1989). As oursupreme court stated in Flores v. Dugan, 91 Ill. 2d 108, 114, 435 N.E.2d 480 (1982), the language"without prejudice" in a dismissal order "clearly manifests the intent of the court that the order notbe considered final and appealable." Nonetheless, a reviewing court must look to the substance,rather than the form, of the order in question in order to determine whether it is final for purposesof appeal. In re Marriage of Yndestad, 232 Ill. App. 3d 1, 4, 597 N.E.2d 215 (1992).

In the instant case, the trial court dismissed the petition for adjudication of wardship of TionaW. pursuant to a version of section 2-14 of the Act which provided that "[i]f the adjudicatory hearingis not heard within the time limits required ***, upon motion by any party the petition shall bedismissed without prejudice." 705 ILCS 405/2-14(c) (West 1994)). In interpreting the language ofsection 2-14 as requiring dismissal, without prejudice, of any petition with regard to which theadjudicatory hearing is not completed within 90 days, our supreme court rejected the notion that itsinterpretation would put children at risk. It reasoned as follows:

"Trial judges are aware of the statutory deadline and are charged with controllingtheir docket accordingly. The Juvenile Court Act further provides for the liberalsupplementing of petitions. See 705 ILCS 405/2-13(5) (West 1994). Moreover,section 2-14 provides that the dismissal of a petition on timeliness grounds is withoutprejudice. 705 ILCS 405/2-14(c)(West 1994). Therefore, the State may immediatelyfile a new petition where children may be put at risk." In re S.G., 175 Ill. 2d at 492.

In accordance with the statute, the trial court dismissed the instant petition without prejudice.

In Flores, the court held that a dismissal for want of prosecution is not final and appealable,as the plaintiff has an absolute right to refile the action, within one year, against the same party orparties and allege the same cause or causes of action. Flores, 91 Ill. 2d at 113-14. Similarly, as oursupreme court observed in S.G., when a petition for adjudication of wardship is dismissed withoutprejudice on the basis that an adjudicatory hearing was not completed within the requisite timeperiod, the State has the right to immediately file a new petition. The State may file the new petitionagainst the same parties and base it on the same charges as those stated in the original petition. Inthe instant case, in fact, the trial court granted a brief stay of its dismissal order to allow the State tofile a new petition. As such, we must conclude that the trial court's order dismissing the State'spetition for adjudication of wardship of Tiona W. without prejudice is not a final order for purposesof appeal.

For the foregoing reasons, we dismiss the instant appeal.

Appeal dismissed.

SOUTH, P.J., and WOLFSON, J., concur.

1. Effective January 1, 1998, section 2-14 was amended to provide that an adjudicatoryhearing must be "commenced," rather than "held," within this 90 day period. In 2001, however,the Illinois Supreme Court declared the public act effecting this amendment unconstitutional. See People v. Sypien, 198 Ill. 2d 334, 345, 763 N.E.2d 264 (2001).

2. Supreme Court Rule 662 provides that an appeal may be taken from an adjudicationof wardship if a dispositional order has not been entered within 90 days of the adjudication order. 134 Ill. 2d R. 662. In the instant case, however, no order of adjudication was ever entered. Rather, the petition for adjudication of wardship was dismissed without prejudice.