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30 June 2000

PRESIDING JUSTICE COOK delivered the opinion of thecourt:

The State appeals the order of the circuit courtdismissing its neglect petition pursuant to section 2-14 of theJuvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-14 (West 1998)), which mandates that adjudicatory proceedings onsuch petitions must commence within 90 days of the date ofservice upon specified persons.

The State filed its petition on May 6, 1999, allegingthe neglect of minors D.E. and K.E. Natalie Ellis is the motherof both children; James Ellis is alleged to be the father of D.E.and David Lockett is alleged to be the father of K.E. We hereinrefer to Natalie Ellis and James Ellis by both first and lastname to avoid confusion.

Concurrently with the filing of the petition, notice ofa shelter-care hearing set for May 7 went out to all parties: Natalie Ellis was personally given notice, as was a court-appointed guardian ad litem (GAL); notice to David Lockett wasleft in his front door; notice to James Ellis was apparently leftat his mother's residence. On either this day or the next,attorneys for Natalie Ellis and Lockett appeared before thecourt, as did the GAL. At the conclusion of the shelter-carehearing, the trial court set the adjudicatory hearing for August4, 1999. James Ellis did not appear and a summons was ordered toissue. Service of the summons was effectuated on June 25,directing him to appear on July 2, 1999. James Ellis appeared assummoned and was admonished, inter alia, that an adjudicatoryhearing on the matter was set for August 4, 1999. August 4,1999, also happened to fall precisely 90 days after filing of theoriginal neglect petition and service of notice of the shelter-care hearing, a fact to which we shall return.

All was quiet until August 4, whereupon the case begana journey through our Sixth Judicial Circuit. First came counselfor James Ellis who, shortly after the case was called, filedinstanter a handwritten motion to recuse the sitting judge, JudgeEinhorn, as a matter of right. Judge Einhorn expressed herdisapprobation of the timing of the motion, noting that JamesEllis had been apprised of the proceedings since his July 2admonishment. Judge Einhorn asked for objections; the attorneyrepresenting Natalie Ellis refused to waive her right to objectto any future proceedings inasmuch as they might fall beyond the90-day deadline contemplated by section 2-14 of the JuvenileCourt Act. Judge Einhorn then granted the motion and directedthe parties to immediately obtain a setting from Judge Clemons. The common-law record for that day contains only a subsequentnotation from Judge Clemons: "The [c]ourt notes the [m]otion for[s]ubstitution of [j]udge filed this date. By agreement of allparties, cause continued to 8-19-99, at 2:00 p.m., in [c]ourtroomL."

August 19, 1999, came and the parties again appearedbefore Judge Clemons. The attorney for Natalie Ellis, however,filed instanter a motion to recuse Judge Clemons as a matter ofright. Judge Clemons granted the motion, transferring the caseto Judge DeLaMar, who apparently had time for a hearing that day. The parties proceeded to Judge DeLaMar's courtroom, where the GALfiled instanter a handwritten motion to recuse Judge DeLaMar as amatter of right. Judge DeLaMar transferred the cause to JudgeDifanis. It was still the afternoon of August 19, 115 days afterthe petition was filed and notice of the shelter-care hearing hadbeen sent.

Upon the arrival of the cause in Judge Difanis' court,the attorney for Natalie Ellis moved to dismiss the actionpursuant to section 2-14(b) of the Juvenile Court Act. The trialcourt denied the motion and the State began introducing itsevidence. The adjudicatory hearing was not concluded, however,and the court continued the case until October 27, 1999, morethan two months later. On October 27, Natalie Ellis' attorneyfiled a written motion to dismiss, again claiming that thehearing had begun beyond the statutory deadline. Also attachedwere the affidavits of Natalie Ellis' attorney, James Ellis'attorney, and the GAL, all of whom averred that none of them hadagreed to a continuance on August 4, despite the entry made byJudge Clemons. Upon further consideration, the court granted themotion and dismissed the cause. This appeal followed.

Section 2-14 of the Juvenile Court Act states:

"(a) Purpose and policy. Thelegislature recognizes that serious delay inthe adjudication of abuse, neglect, ordependency cases can cause grave harm to theminor and the family and that it frustratesthe health, safety[,] and best interests ofthe minor and the effort to establishpermanent homes for children in need. Thepurpose of this [s]ection is to insure that,consistent with the federal AdoptionAssistance and Child Welfare Act of 1980,Public Law 96-272, as amended, and the intentof this [a]ct, the State of Illinois will actin a just and speedy manner to determine thebest interests of the minor, includingproviding for the safety of the minor,identifying families in need, reunifyingfamilies where the minor can be cared for athome without endangering the minor's healthor safety and it is in the best interests ofthe minor, and, if reunification is notconsistent with the health, safety[,] andbest interests of the minor, finding anotherpermanent home for the minor.

(b) When a petition is filed allegingthat the minor is abused, neglected ordependent, an adjudicatory hearing shall becommenced within 90 days of the date ofservice of process upon the minor, parents,any guardian[,] and any legal custodian,unless an earlier date is required pursuantto [s]ection 2-13.1. Once commenced,subsequent delay in the proceedings may beallowed by the court when necessary to ensurea fair hearing.

(c) Upon written motion of a party filedno later than 10 days prior to hearing, orupon the court's own motion[,] and only forgood cause shown, the [c]ourt may continuethe hearing for a period not to exceed 30days, and only if the continuance isconsistent with the health, safety[,] andbest interests of the minor. When the courtgrants a continuance, it shall enter specificfactual findings to support its order,including factual findings supporting thecourt's determination that the continuance isin the best interests of the minor. Only onesuch continuance shall be granted. A periodof continuance for good cause as described inthis [s]ection shall temporarily suspend asto all parties, for the time of the delay,the period within which a hearing must beheld. On the day of the expiration of thedelay, the period shall continue at the pointat which it was suspended.

The term 'good cause' as applied in this[s]ection shall be strictly construed and bein accordance with Supreme Court Rule 231(a)through (f). Neither stipulation by counselnor the convenience of any party constitutesgood cause. If the adjudicatory hearing isnot heard within the time limits required bysubsection (b) or (c) of this [s]ection, uponmotion by any party the petition shall bedismissed without prejudice.

(d) The time limits of this [s]ectionmay be waived only by consent of all partiesand approval by the court.

(e) For all cases filed before July 1,1991, an adjudicatory hearing must be heldwithin 180 days of July 1, 1991." 705 ILCS405/2-14 (West 1998).

At issue, therefore, is the nature of the relationshipbetween the mandate of section 2-14 of the Juvenile Court Act (705 ILCS 405/2-14 (West 1998)) and the statute governing thesubstitution of a judge as a matter of right (735 ILCS 5/2-1001(a)(2) (West 1998). The issue is one of first impression inthe Illinois courts. We note at the outset that, despite remarksin the court below, the issue is one of statutory authority, not"jurisdiction." In re C.S., 294 Ill. App. 3d 780, 785-86, 691N.E.2d 161, 164-65 (1998).

We first consider upon which date the statutorydeadline actually fell. Section 2-14(b) of the Juvenile CourtAct prescribes that the adjudicatory hearing "shall be commencedwithin 90 days of the date of service of process upon the minor,parents, any guardian[,] and any legal custodian." 705 ILCS405/2-14(b) (West 1998). Our courts have always assumed that"service of process" means service of the underlying neglectpetition. See, e.g., In re E.M., 295 Ill. App. 3d 220, 224, 692N.E.2d 431, 434 (1998); compare In re S.G., 175 Ill. 2d 471, 483,677 N.E.2d 920, 926 (1997) (where the supreme court held that, asto fathers who had been served by publication but had notappeared, the period began running at the time that the fatherswere found in default by the court). Construing "service ofprocess" to refer to service of the underlying neglect petitionfairly comports with the overall statutory scheme, for theJuvenile Court Act contains a specific provision prescribingthat, when a petition is filed, summons on that petition willissue. 705 ILCS 405/2-15 (West 1998).

Here, James Ellis was not served summons on the instantpetition until June 25, 1999, nor had he previously appeared. Ifwe took this date as beginning the running of the statutoryperiod, the deadline for commencing the adjudicatory hearing wasSeptember 23, 1999. As the proceedings here in fact commenced onAugust 19, 1999, they were well within the period under thisinterpretation.

Natalie Ellis presents us with a different theory: that notice of a shelter-care hearing will also suffice totrigger the running of the 90-day period. Most troubling for theState's case on appeal, it appears to have adopted her positionat all times in the court below. The State assured the courtseveral times that the statutory period ran from May 7 (serviceupon all parties of notice of the shelter-care hearing, whichhearing was held that date) until August 4, 1999, e.g.:

"JUDGE DIFANIS: But you agree that the4[th] of August is the crucial date?

STATE'S ATTORNEY: That's the 90th day."

As to the underlying petition, the State did not even adduceproof of service upon James Ellis until the day before NatalieEllis filed her appellate brief with this court.

In support of her position, Natalie Ellis points outthat section 2-10(3) of the Juvenile Court Act requires shelter-care hearing notices to contain a significant amount of detail,and relies especially on the required warning that "the partieswill not be entitled to further written notices *** ofproceedings in this case, including the filing of an amendedpetition or a motion to terminate parental rights." 705 ILCS405/2-10(3) (West 1998). Her overall point is an arguable one,for the primary purpose of service of process is clearly toapprise individuals of the existence and nature of proceedingsagainst them. Properly served notices of a shelter-care hearingwould fulfill this purpose, as they amply inform parents that thewelfare of their children, and their role regarding same, are atissue.

While we would reject this argument as a matter ofstatutory construction, we also note that the shelter-carehearing notices issued here were deficient, most notably becausethey did not contain the language upon which Natalie Ellisrelies. That is, they failed to apprise the recipient that he orshe would not be entitled to further notice, in conformity withsection 2-10(3) of the Juvenile Court Act. Being deficient, theywere infirm to trigger the provisions of section 2-14 of theJuvenile Court Act. That time limitation then began running onlywhen James Ellis was finally served on June 25 and, because theadjudicatory hearing commenced 55 days later, it came within thestatute's directives.

Nonetheless, owing to failure to raise this issue inthe court below, and because the issue is capable of repetition,we address the relationship between section 2-14 of the JuvenileCourt Act and the substitution of a judge as a matter of right,where it is assumed that invocation of the right results incommencement of the proceedings at some time beyond the statutorydeadline.

Section 2-14 of the Juvenile Court Act was recentlyaddressed by the Supreme Court of Illinois in S.G., 175 Ill. 2dat 479-83, 677 N.E.2d at 924-26. Under the version of thestatute then in effect, an adjudicatory hearing had to have been"held" within 90 days of the service of process. One of theissues in the case was whether this meant the hearing mustactually have been completed within that time or merelycommenced. The supreme court took the view that the proceedingsmust be completed within 90 days of service. Because therationale of the court in reaching its decision bears directlyupon our reasoning today, we quote the court directly:

"[The conclusion that the hearings mustbe completed within the statutory period] isalso consistent with the stated purpose ofthe statute to 'insure' the speedy resolutionof abuse and neglect cases. If we allowed atechnical start of the hearing followed by anindeterminate period of delay to satisfysection 2-14, the statutory protection ***would not be guaranteed. *** We are alsoconfident that the trial judge can exercisesufficient control over the proceedings toprevent a party from obtaining a dismissalthrough purposeful delay." S.G., 175 Ill. 2dat 483, 677 N.E.2d at 926.

Three dissenting justices repudiated the majority'snarrow construction, citing our prior decision in In re H.R., 283Ill. App. 3d 907, 671 N.E.2d 93 (1996), vacated, 173 Ill. 2d 525,683 N.E.2d 891 (1997), for the proposition that, while diligentcourt proceedings were clearly the salutory purpose underlyingthe section, the speedy resolution of adjudicatory hearings mightnot always be consistent with the legislature's overall intent tosafeguard children. S.G., 175 Ill. 2d at 500-02, 677 N.E.2d at934 (McMorrow, J., dissenting). The dissent moreover noted thedanger presented by parties who were wilfully dilatory. S.G.,175 Ill. 2d at 499-500, 677 N.E.2d at 933 (McMorrow, J.,dissenting). The dissent therefore called upon the legislatureto amend the statute. S.G., 175 Ill. 2d at 502-03, 677 N.E.2d at935 (McMorrow, J., dissenting).

The legislature did in fact amend section 2-14(b) inaccordance with the S.G. dissent's suggestion. The word "held"was changed to "commenced." Pub. Act 90-456,