text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Fernando CASAS Jr., Defendant-Appellee.
    No. 2-15-0456
    Appellate Court of Illinois, Second District.
    Opinion filed April 20, 2018
    Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Michael M. Glick and Eldad Z. Malamuth, Assistant Attorneys General, of counsel), for the People.
    Mark H. Kusatzky, of Law Offices of Mark H. Kusatzky, of Northfield, for appellee.
   JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 In our first opinion in this case, we held that "the offense of violation of bail bond is a continuing offense such that the limitations period on a violation-of-bail-bond prosecution is tolled until an offender is returned to custody." People v. Casas , 2016 IL App (2d) 150456, ¶ 1, 406 Ill.Dec. 7, 59 N.E.3d 785. We thus held that the charge against defendant, Fernando Casas Jr., was filed within the limitations period and we reversed the trial court's dismissal of the charge. On further appeal, the supreme court agreed that the offense is a continuing offense but held that the limitations period is tolled only until the offender "no longer has an obligation to appear in court." People v. Casas , 2017 IL 120797, ¶ 43, --- Ill.Dec. ----, --- N.E.3d ----. The court thus held that the charge here was not filed within the limitations period (unless that period was otherwise tolled). Id. ¶ 44. The court then directed us to consider the State's contention that "its reference to defendant's use of a false identification in the information qualified as an exception to the limitations period applicable when a criminal defendant 'is not usually and publicly resident within this State' " under section 3-7(a) of the Criminal Code of 2012 (Criminal Code). Id. ¶ 45 (quoting 720 ILCS 5/3-7(a) (West 2014) ). We now consider that contention and, ultimately, we agree with the State. Accordingly, as before, we reverse the trial court's dismissal of the charge.

¶ 2 For the reader's convenience, we will restate the factual background of this case. At some point in 1996 (the record does not indicate precisely when), defendant was indicted by the statewide grand jury for the manufacture or delivery of cocaine in excess of 900 grams, a Class X felony. The case was transferred to Du Page County under case No. 96-CF-1920. On October 16, 1996, the trial court admitted defendant to bail in the amount of $750,000; he posted a 10% cash bond. Thereafter, defendant regularly appeared in court for the case. On June 9, 1998, however, defendant failed to appear in court; the trial court ordered that defendant's bond was forfeited and it issued a bench warrant for his arrest. During the next 30 days, defendant did not surrender himself to authorities. Later, defendant was tried in absentia on the cocaine charge, found guilty, and sentenced to 20 years' imprisonment.

¶ 3 On April 5, 2014, roughly 18 years after defendant was first indicted, the police stopped defendant for a traffic offense in Du Page County. During that stop, defendant gave the police a false name and a fake ID. In subsequent conversations with the police, defendant revealed his true identity, admitted that he stopped going to court in the 1996 case, and acknowledged the warrant for his arrest. Defendant also confessed that, because of the arrest warrant, he had used two different false identities-including the one on the fake ID, which he purchased in Mexico-to avoid apprehension while living in the United States.

¶ 4 Based on these facts, in December 2014, defendant was indicted for the violation of his 1996 bail bond. The Criminal Code sets forth the offense of violation of a bail bond as follows:

"Whoever, having been admitted to bail for appearance before any court of this State, incurs a forfeiture of the bail and knowingly fails to surrender himself or herself within 30 days following the date of the forfeiture, commits, if the bail was given in connection with a charge of [a] felony * * *, a felony of the next lower Class * * *." 720 ILCS 5/32-10(a) (West 2014).

The State's indictment alleged that defendant forfeited his bond by failing to appear in court on June 9, 1998, and by knowingly failing to surrender himself within 30 days of that date. The offense was charged as a Class 1 felony because defendant's underlying cocaine charge was a Class X felony.

¶ 5 Defendant moved to dismiss the indictment, arguing that a prosecution for violation of his bail bond was time-barred. 725 ILCS 5/114-1(a)(2) (West 2014). More specifically, defendant claimed that, under the general statute of limitations for felonies, the State had three years to bring the bail-bond charge against him ( 720 ILCS 5/3-5(b) (West 2014) ), or until July 10, 2001. Defendant noted that more than three years had passed, and he asserted that the State did not allege any facts in the indictment that would toll or extend the three-year limitations period. See generally id. § 3-6 (extending limitations period for certain offenses); id. § 3-7 (excluding certain times from limitations period); id. § 3-8 (providing that, for continuing offenses, limitations period is tolled and commences when "last such act" was committed).

¶ 6 In response, the State filed a superseding information, which provided as follows:

"[O]n or about July 9, 1998, and continuing through and until April 5, 2014, [defendant] committed the offense of VIOLATION OF BAIL BOND, a Class 1 felony, in that * * * defendant, after having been admitted to bail on or about October 16, 1996, for appearance in the Circuit Court of DuPage County * * * in case 96-CF-1920, and on or about June 9, 1998, he incurred a forfeiture of his bail and thereafter knowingly, willfully, and unlawfully failed to surrender himself within 30 days following the date of the forfeiture of the bail, in violation of [section 32-10(a) of the Criminal Code ( 720 ILCS 5/32-10(a) (West 2014) ) ]; and because Violation of Bail Bond should be considered a continuing offense, the statute of limitations did not start running until April 5, 2014, when defendant was apprehended and admitted that he used [a] false identity to evade prosecution."

¶ 7 In a footnote in the information, the State asserted that "[t]his Court is bound by People v. Grogan , 197 Ill. App. 3d 18, 143 Ill.Dec. 730, 554 N.E.2d 665 (1st Dist. 1990), which held that violation of a bail bond is not a continuing offense." (Emphasis in original.) The information then noted that the State was "mak[ing] a good[-]faith argument that Grogan was improperly decided and should be overruled." The State's use of the phrase "continuing offense" in the information was a reference to section 3-8 of the Criminal Code, which tolls the three-year limitations period as follows: "When an offense is based on a series of acts performed at different times, the period of limitation prescribed by this Article starts at the time when the last such act is committed." 720 ILCS 5/3-8 (West 2014).

¶ 8 Defendant had no objection to the information, and the trial court granted the State leave to file the information in place of its earlier indictment. Defendant, however, stood on his earlier-filed motion to dismiss. The trial court granted defendant's motion to dismiss, finding that, pursuant to Grogan , defendant's prosecution for violation of his bail bond was time-barred. The State timely appealed. See Ill. S. Ct. R. 604(a)(1) (eff. Mar. 8, 2016).

¶ 9 On appeal, the State contended that violation of a bail bond is a continuing offense under section 3-8 of the Criminal Code ( 720 ILCS 5/3-8 (West 2014) ) and that Grogan was wrongly decided. Thus, according to the State, the limitations period was tolled when the offense was initially committed, and it began to run once defendant was taken into custody. Accordingly, because defendant was charged with the bail-bond offense well within three years from the date of his arrest, the statute of limitations was not violated. In the alternative, the State argued that its reference to defendant's use of a false identity qualified as an exception to the limitations period for when a criminal defendant "is not usually and publicly resident within this State" (id. § 3-7(a) ). We agreed with the State on the first issue and thus did not address the second. Casas , 2016 IL App (2d) 150456, ¶ 9, 406 Ill.Dec. 7, 59 N.E.3d 785.

¶ 10 After our disposition, the supreme court granted defendant's petition for leave to appeal. See Ill. S. Ct. R. 315 (eff. Mar. 15, 2016). As noted, the court agreed that violation of a bail bond is a continuing offense and that the limitations period was tolled when the offense was initially committed. However, the court held that the period began to run not when defendant was taken into custody in 2014 but rather when he was convicted and sentenced in absentia on the underlying cocaine offense. In other words, once defendant was convicted and sentenced, his obligation to appear terminated and he was no longer violating his bail bond. Casas , 2017 IL 120797, ¶ 43, --- Ill.Dec. ----, --- N.E.3d ----.

¶ 11 Thus, because defendant was convicted and sentenced in the underlying criminal case "in either 1998 or 1999," the supreme court determined that the bail-bond charge had not been filed within the limitations period, unless that period was otherwise tolled. Id. The court thus remanded the cause for us to consider the State's alternative argument that the limitations period was tolled under the publicly-resident exception in section 3-7(a) of the Criminal Code, which we do now.

¶ 12 Our supreme court has declined to rigidly define what is required for the State to invoke an exception to the statute of limitations. See People v. Morris , 135 Ill. 2d 540, 547, 143 Ill.Dec. 215, 554 N.E.2d 150 (1990). The standard for assessing the sufficiency of a charging instrument -both for the offense and for exceptions to the statute of limitations-is whether the document "provide[s] notice to the defendant of precisely what the State will attempt to prove (and therefore to allow the defendant an opportunity to prepare a defense)." Id. To satisfy this standard, "the State must not only set forth circumstances which, in and of themselves, would provide a basis for tolling a limitation period, but the State must make clear that those circumstances are in fact the basis upon which the State seeks to toll the limitation period." Id. Here, the superseding information provided that, "because Violation of Bail Bond should be considered a continuing offense, the statute of limitations did not start running until April 5, 2014, when defendant was apprehended and admitted that he used [a] false identity to evade prosecution ." (Emphasis added.) The State argues that the emphasized phrase was sufficient to invoke section 3-7(a). Although the trial court, having followed Grogan , did not have occasion to address this issue, the sufficiency of a charge is a question of law ( People v. Carey , 2018 IL 121371, ¶ 19, --- Ill.Dec. ----, --- N.E.3d ---- ), and thus, as our supreme court has directed, we may resolve it in the first instance.

¶ 13 Before reaching the merits, however, we must address a preliminary issue. Defendant asserts that the State forfeited its contention by failing to invoke section 3-7(a) in the superseding information. In this regard, defendant has missed the State's point. The essence of the State's position is that, by alleging that defendant "used [a] false identity to evade prosecution," it sufficiently invoked section 3-7(a). Thus, defendant's forfeiture argument is actually an argument that the State's contention fails on the merits; and on the merits, we determine that the State is correct.

¶ 14 Again, the State alleged that the charge was timely because, inter alia , defendant had "used [a] false identity to evade prosecution." The State thus effectively alleged that defendant had been, in colloquial terms, "hiding out"-or, in legal terms, that he had not been "usually and publicly resident within this State" ( 720 ILCS 5/3-7(a) (West 2014) ). Certainly the allegation does not even remotely touch on any other possible ground for tolling the limitations period. See id. § 3-7(b) -(f). In short, we cannot see how defendant could have interpreted the "false identity to evade prosecution" allegation as anything but an invocation of section 3-7(a).

¶ 15 Defendant also objects that the State did not specifically cite section 3-7(a) in the superseding information. A statutory citation is not crucial, however. See supra ¶ 12; Morris , 135 Ill. 2d at 547, 143 Ill.Dec. 215, 554 N.E.2d 150. Defendant also accuses the State of failing to specify the dates within which the exception applied. But to the extent that those dates were crucial, the State alleged them: it alleged that defendant had "used [a] false identity to evade prosecution" from July 9, 1998, until April 5, 2014.

¶ 16 Defendant's primary contention is that section 3-7(a) applies only when the defendant is "living out of state"-and that the State must use that language in the charge as opposed to what the State said here. As the State points out, defendant's interpretation is inconsistent with the plain language of section 3-7(a). The statute says that it applies when the defendant is not "usually and publicly resident within this State." 720 ILCS 5/3-7(a) (West 2014). If it were to apply only when the defendant is "living out of state," there would be no purpose for the words "usually and publicly." We, of course, cannot treat any statutory term as meaningless and must apply the language as written. See People v. Smith , 2016 IL 119659, ¶ 27, 412 Ill.Dec. 793, 76 N.E.3d 1251. Had the legislature intended the result defendant suggests, then it could have simply said that time is tolled when the defendant is not "resident within this State." But, again, that is not what the legislature said. We think that the meaning of section 3-7(a) is clear enough: section 3-7(a) excludes time when the defendant is either "living out of state" or living in this state just not "usually and publicly." And, of course, if one is living in this state but under a false identity, then he is not living here "usually" or "publicly." See, e.g. , People v. Rievia , 307 Ill. App. 3d 846, 855, 241 Ill.Dec. 674, 719 N.E.2d 1077 (1999) (holding that defendant was not "publicly present in the state" while using a false identity, even though he was in State custody).

¶ 17 In addition, we note that the two cases defendant cites for the proposition that section 3-7(a)"has been interpreted to mean that the defendant was out of state" do not in any way suggest that the statute applies only if the defendant was out of state. It would be more apt to say that the two cases on which defendant relies- People v. Meier , 223 Ill. App. 3d 490, 165 Ill.Dec. 836, 585 N.E.2d 232 (1992), and People v. Saunders , 235 Ill. App. 3d 661, 176 Ill.Dec. 340, 601 N.E.2d 1038 (1992) -merely stand for the uncontroversial proposition that the limitations period can be tolled for the time that the defendant has been absent from the state and can begin to run again when the defendant returns to Illinois. Unlike Rievia , neither of the cases cited by defendant sheds any light on the application of section 3-7(a) in the context of this case.

¶ 18 We determine that the superseding information satisfied the standard in Morris . The information set forth circumstances that ultimately, if proven, would toll the limitations period under section 3-7(a) -namely, that defendant was living under a false identity from July 9, 1998, to April 5, 2014. In our view, the information was sufficiently clear-certainly clear enough to provide the required notice to defendant-that the State would rely, at least in part, on those circumstances to toll the limitations period. Candidly, however, we cannot see a good reason for the State not to have simply quoted or even cited section 3-7(a) in the information. See, e.g. , People v. Herrera , 2012 IL App (2d) 110009, ¶ 14, 361 Ill.Dec. 273, 970 N.E.2d 1219 (noting that, in most cases, when invoking legal authority, "a 'word for word' recitation [of the rule or statute] is the better practice"). Doing so, and clearly stating the dates that the State believed were excluded, would have put defendant indisputably on notice. Put differently, we are aware of no case in which a court has chastised parties for having been too clear in their pleadings.

¶ 19 Nevertheless, we hold that the superseding information gave defendant sufficient notice to invoke the tolling provision in section 3-7(a). Of course, on remand, defendant may move to dismiss on the ground that he, in fact, was not living under a false identity or, if he was living under a false identity, that the period during which he was doing so was so short that the charge remains untimely. The procedure for handling such challenges was previously unclear, as we pointed out in People v. Lutter , 2015 IL App (2d) 140139, 397 Ill.Dec. 597, 42 N.E.3d 843. After our decision there, however, the legislature enacted Public Act 100-434 (eff. Jan. 1, 2018), which points the way forward. Under the new statutory framework, after a defendant moves to dismiss a charge as time-barred, the State then "shall have the burden of proving, by a preponderance of the evidence," that the charge is not time-barred; this showing would be made at a pretrial hearing on the motion. See id. (adding 720 ILCS 5/3-7(a-5) and 725 ILCS 5/114-1(d-6) ); see also Smith v. United States , 568 U.S. 106, 112, 133 S.Ct. 714, 184 L.Ed.2d 570 (explaining that a lapse of the limitations period "does not call the criminality of the defendant's conduct into question").

¶ 20 In sum, we reverse the judgment of the circuit court of Du Page County and remand this cause for further proceedings.

¶ 21 Reversed and remanded.

Presiding Justice Hudson and Justice Spence concurred in the judgment and opinion.

      We note that defendant did not make that argument in this court or, evidently, in the supreme court. That is, defendant argued only that the offense was complete 30 days after the bond forfeiture and did not continue (see Casas , 2017 IL 120797, ¶ 21, --- Ill.Dec. ----, --- N.E.3d ---- ); he did not argue in the alternative that, if the offense did continue, it continued only until his conviction and sentence.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE K.E.S., a Minor
    (The People of the State of Illinois, Petitioner-Appellee, v. Cynthia S. and Edward S., Respondents-Appellants).
    Nos. 2-17-0907 & 2-18-0005 cons.
    Appellate Court of Illinois, Second District.
    Rule 23 Filed April 20, 2018 Motion to Publish Granted May 9, 2018 Opinion filed May 9, 2018
    Brandi L. Chudoba and Mindy R. Chudoba, of Faulkner Spears & Chudoba, LLC, of Rockford, for appellant Cynthia S.
    Alan W. Cargerman, of Oregon, for appellant Edward S.
    Eric Morrow, State's Attorney, of Oregon (Patrick Delfino, David J. Robinson, and Stephanie Hoit Lee, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 On October 12, 2017, the circuit court of Ogle County issued a dispositional order in this case that (1) made K.E.S. a ward of the court; (2) found both her mother, Cynthia S., and her father, Edward S., unfit; and (3) granted guardianship and custody of K.E.S. to the Department of Children and Family Services (DCFS). Both parents filed separate appeals, which we ordered consolidated. We affirm the trial court's finding of unfitness with respect to Edward, reverse its finding that Cynthia was unfit, and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 On December 29, 2006, K.E.S. was born to Cynthia and Edward, who were married. In 2007, Edward was arrested for domestic battery after Cynthia accused him of pushing her while she was holding K.E.S. Edward denied the accusation and was never convicted of that charge. In 2009, Edward petitioned to dissolve his marriage to Cynthia. That same year, based on further allegations by Cynthia that he abused her, an order of protection was entered against him.

¶ 4 The marriage was dissolved in 2012, and in 2013 Cynthia was granted custody of K.E.S. The custody order required Edward to go through reunification counseling with a counselor at the office of Dr. Marianne Geiger before he could have contact with K.E.S. The custody order further modified the order of protection (which was extended until 2017) to allow Edward to participate in counseling sessions at which Cynthia and K.E.S. were present. Although Edward made an initial appointment to begin the counseling, he later cancelled it as it was too expensive. As of early 2017, he had had no contact with K.E.S. since she was two years old.

¶ 5 On November 16, 2016, Cynthia and K.E.S. were in a rollover car accident, reportedly after Cynthia was driving erratically at high speed. K.E.S. was not injured, but Cynthia was hospitalized for three weeks for mental health concerns. K.E.S. was initially released into the care of Joseph Ganus. Ganus had been hired by DCFS in 2012 to assist Cynthia, who had physical limitations. He eventually moved in with Cynthia and K.E.S. as a roommate, providing housecleaning services, driving, and some medical assistance. However, after DCFS learned that Ganus did not have authority to make medical decisions for K.E.S., that the home did not have heat, and that K.E.S. was involved in truancy proceedings for school absences, a neglect petition was filed.

¶ 6 On December 22, 2016, DCFS was appointed temporary guardian and K.E.S. was placed in a foster home. Cynthia was permitted twice-weekly supervised visits with K.E.S. On February 20, 2017, the juvenile court denied Cynthia's request to extend the order of protection and Edward was permitted to begin a reunification process with K.E.S. That process began with Edward having monthly telephone conversations with K.E.S. during some of her individual therapy sessions with Dr. David Klemm, a psychologist.

¶ 7 On May 18, 2017, the State filed its second amended neglect petition, alleging that K.E.S. was neglected in that, at the time of the initial December 2016 petition, (1) Cynthia had mental health issues that prevented her from properly parenting K.E.S. and placed K.E.S. at risk; (2) K.E.S. was without proper care because Cynthia was hospitalized and Edward was barred from contact with her; (3) Cynthia's home had no heat or food; and (4) Cynthia's car accident arising from her psychological condition had placed K.E.S. in danger. At a court hearing on that same day, Cynthia stipulated to the allegations for the purpose of adjudication, and the trial court found that K.E.S. was a dependent and neglected minor.

¶ 8 The dispositional hearing began on July 11, 2017, and continued on July 31 and August 29. The evidence presented included the following.

¶ 9 DCFS and Court Appointed Special Advocates (CASA) each submitted reports dated May 31, 2017. In its report, DCFS began by noting that, due to allegations of physical aggression by Edward against Cynthia, an intact-family case was opened in March 2008. The parties separated, with Cynthia as the primary caregiver for K.E.S. In August 2008, Cynthia attempted suicide. Edward cared for K.E.S. for a short time until Cynthia could resume parenting duties. Cynthia participated in mental health treatment and addressed domestic violence issues with a different therapist at the same clinic where Dr. Geiger worked. She also attended Marriage First classes, including parenting classes, and she displayed an understanding of the skills taught. She obtained an order of protection against Edward. The case was satisfactorily closed in March 2009.

¶ 10 Cynthia had chronic medical conditions, most involving her gastrointestinal system, plus asthma, migraines, and allergies. She had been prescribed several medications. Upon her release from the hospital in December 2016, Cynthia was prescribed several psychotropic medications to aid in her stabilization. She did not fill these prescriptions, as her medical card had expired. She also did not follow up on her first referral for counseling, as Edward had been referred to the same program and she did not feel comfortable or safe attending the program.

¶ 11 In March, Cynthia began seeing Margaret Corcoran, a therapist at a different center. At the first visit, Corcoran suggested that Cynthia be hospitalized. Cynthia voluntarily admitted herself to a hospital in Dixon, where she remained for about a week and was able to obtain the medications she had been prescribed earlier. The DCFS report stated that Corcoran requested the admission because Cynthia was shaking uncontrollably and possibly depressed. At the dispositional hearing, however, Corcoran testified that she recommended hospitalization because it was the most expedient way to have Cynthia evaluated and her medication reviewed. Since then, Cynthia had been seeing Corcoran every two weeks for about three months and was compliant with all of her medications. Cynthia was doing well, and Corcoran opined that, as long as she continued to attend therapy and take her medication, she was stable enough to resume parenting K.E.S.

¶ 12 As to the home, DCFS noted that, after the home that Cynthia and Ganus had been renting went into foreclosure, Ganus bought a two-bedroom mobile home for them to live in. Ganus helped Cynthia keep track of her appointments and transported her to them. Cynthia paid the lot rent each month. The home was clean and well-stocked. Cynthia's visits with K.E.S. took place in the home and were going well.

¶ 13 As for Edward, he was a truck driver and was often on the road. When he was home, he lived with a woman named Sherrel Isler and her three children. Edward and Isler also had a five-month-old son. However, Edward stated that he and Isler were not in a romantic relationship.

¶ 14 DCFS referred Edward to a counseling center. He arrived for his first appointment with Isler and, when told that she could not be present during his session, he refused to proceed with the counseling. Although DCFS had suggested other services, Edward declined to participate in them, pointing out that there were no allegations of abuse or neglect against him in the neglect petition. DCFS asked to include Isler and her children in the assessment and to visit their home to ensure that it was safe, but Edward and Isler refused on the ground that they were not legally required to submit to this.

¶ 15 Edward had begun having phone conversations with K.E.S. that were monitored by her therapist, Dr. Klemm. As of the end of May, he had had four such telephone "visits." Edward also met with Dr. Klemm on two occasions, at Dr. Klemm's request. Edward wanted K.E.S. to live with him, Isler, and their children.

¶ 16 DCFS also spoke with K.E.S. She was doing well at her foster home and in school. K.E.S. reported having a good relationship with Cynthia and wanted to resume living with her. K.E.S. was afraid of Edward, telling the DCFS worker that he had hit her when she was a baby and had shown up in her and her mother's "territory" even when the order of protection was in place. K.E.S. did not want to live with her father. She would prefer to live with her mother and visit with her father on weekends. If she could not live with her mother, she would rather stay with her foster mother.

¶ 17 In the report's conclusion, DCFS stated that the "safety issues" that had brought K.E.S. into care had diminished to the point that they were now "risk concerns." DCFS acknowledged Cynthia's progress in therapy and compliance with prescribed medications, albeit noting that she still appeared to have limited insight into the needs and well-being of K.E.S. and her own impact on those. DCFS also expressed concern over Edward's refusal to cooperate with the agency's suggestions, referrals, and home safety concerns. DCFS recommended that K.E.S. remain in foster care for the time being, with the goal of returning home.

¶ 18 The initial CASA report contained similar conclusions and recommendations. CASA observed a visit between K.E.S. and Cynthia, at which K.E.S. was animated and talkative. Her foster mother reported that K.E.S. came home happy after visits with her mother. CASA reported that, once the telephone "visits" with her father started, K.E.S.'s school called to report that she was not eating her lunch. Further, on May 22, 2017, Edward told K.E.S. on the phone that she would be coming to live with him after the June 7, 2017, status hearing. After this, K.E.S. again stopped eating and she hung strings across her bedroom door so that no one could come in. CASA was concerned by all of this and also by Edward's noncooperation with DCFS recommendations and requests.

¶ 19 Prior to the first day of the dispositional hearing, DCFS and CASA each submitted addenda to their reports, covering events between May 31 and July 10. DCFS

included more information about K.E.S.'s individual therapy with Dr. Klemm, which had begun in early February and was going well. K.E.S. was reported to have made significant progress, developing healthy coping strategies and being able to express attachment to others. DCFS reported that, after several weeks of telephone conversations between K.E.S. and Edward during therapy, a face-to-face meeting occurred on June 12. K.E.S. was introduced to her father but was very frightened and would only say "hi" and "bye." The visit was then cut short at K.E.S.'s request. After the meeting, K.E.S. was quiet, had trouble sleeping, and asked that any future visits be by telephone only. DCFS nevertheless recommended further in-person counselor-supervised visits so that K.E.S. could "reach a place of comfort with her father."

¶ 20 DCFS had held an administrative case review on June 28. Edward was rated unsatisfactory, as he had not signed requested consents or obtained a mental health assessment and individual therapy as requested by DCFS. Cynthia was rated as satisfactory on all of the tasks in her service plan. DCFS recommended that Cynthia be allowed unsupervised visits with K.E.S.

¶ 21 CASA's addendum expressed great concern over K.E.S.'s negative reaction to the meeting with Edward and noted that her attorney had filed a motion to restrict visitation between Edward and K.E.S. to only telephone visits until Edward had participated in individual counseling and had begun cooperating with the DCFS service plan. When CASA met with K.E.S. near the end of June, K.E.S. said that she did not want to see Edward again and asked that she not even have phone calls with Edward. Further, the CASA addendum expressed concern that Dr. Klemm had received the impression from DCFS that the goal was to have K.E.S. live with Edward. CASA was under the impression that the goal was to return K.E.S. to Cynthia.

¶ 22 In addition to the reports and addenda from DCFS and CASA, several witnesses testified at the dispositional hearing. Tracey Goodman, the DCFS caseworker, generally testified to the same observations contained in the DCFS report and addendum. She confirmed that Cynthia had complied with all of the tasks in her service plan, and was taking her medication, continuing with individual therapy and domestic violence counseling, and maintaining stable housing. Cynthia was making progress, was stable, and was able to cook for K.E.S. There were no concerns with Ganus, who at this point was assisting Cynthia only with some transportation needs. Cynthia's visits with K.E.S. were going "very, very well," and DCFS recommended that at least one of her two weekly visits be unsupervised going forward.

¶ 23 As for Edward, Goodman testified that he had participated in DCFS team meetings in May and had eventually signed the requested release forms on June 12. Despite his refusal to participate in parenting education and mental health recommendations, DCFS believed that his reunification efforts through Dr. Klemm should continue.

¶ 24 Trisha Patterson, the CASA advocate for K.E.S., similarly testified in accordance with the CASA report and addendum. She had observed that K.E.S. always looked forward to visits with her mother. Patterson did not see any problem with unsupervised visits between Cynthia and K.E.S. She did not have an opinion as to whether K.E.S. should live with her mother.

¶ 25 Ganus testified that he began working for Cynthia in 2012 as part of a social service program that provides services to individuals with disabilities. He was hired to help her with housecleaning and some medical care. He eventually moved in with her as a roommate. His assistance to Cynthia had since decreased, and he now mostly drove her to appointments and to pick up medication. He considered Cynthia and K.E.S. to be "like family."

¶ 26 Ganus testified that, at the end of 2016 and in January 2017, Cynthia had episodes of behavior that concerned him. The car accident was one example. At another point, Cynthia locked herself and K.E.S. in her room and was chanting. Today Cynthia was doing great; she had had a 100% improvement and was in better shape now than when he first met her. He no longer had concerns about her mental state, and he had no concerns about her ability to parent K.E.S. or that her past behavior would return. Cynthia was a loving, caring, and nurturing parent. In the past, when he saw behavior that concerned him, he called the police, and he would do so in the future if he ever saw such behavior.

¶ 27 Ann Philips, K.E.S.'s foster mother since December 2016, testified that she and K.E.S. had discussed K.E.S.'s relationship with Cynthia. K.E.S. told her that she loved her mother very much and wanted to be with her. K.E.S. was happy when she was with Cynthia and came home from visits with Cynthia "free and giggly" and happy.

¶ 28 Corcoran, Cynthia's therapist, testified that she provided counseling to Cynthia while one of her colleagues, a nurse practitioner named Michelle Blackmer, managed Cynthia's medications under a unified treatment plan. At her first session with Cynthia on March 8, Cynthia said that she was off her medication and would like to be put back on it; achieving this quickly was why Corcoran recommended that Cynthia go to the local hospital. Cynthia attended all but two of her appointments, which she had rescheduled ahead of time. Corcoran diagnosed Cynthia with bipolar disorder ; Blackmer diagnosed her as suffering from post-traumatic stress disorder (PTSD). Cynthia's therapy so far had been focused on the present rather than past mental health and domestic violence issues. That therapy, along with changes in her medications, had had a positive effect. During sessions, Cynthia was more talkative, more expressive, and "brighter." She was able to cogently and logically report how she was feeling and how things in her life were going, and was in a stable environment. Cynthia wanted to actively work on her mental health so that she could get her daughter back, which she wanted more than anything.

¶ 29 Corcoran testified that a patient with bipolar disorder and PTSD who was properly taking medication could raise a child. In Corcoran's opinion, Cynthia could care for K.E.S. as long as she stayed on her medication, continued with therapy, and remained in a stable environment. Although Cynthia still at times suffered from depression, anxiety, and flat affect, she was stable. Further, these symptoms alone did not render patients unable to care for their children.

¶ 30 Dr. Geiger, a psychiatrist, treated Cynthia from 2008 to 2012. Cynthia also saw one of Dr. Geiger's colleagues, Bruce Pearson, as her primary therapist. Cynthia was suffering from anxiety and depression, which were symptoms of the PTSD that Dr. Geiger ultimately diagnosed Cynthia as having. Cynthia's therapy related to the difficulties she was having with Edward, who Cynthia said had threatened her physically and had violated an order of protection. Dr. Geiger found Cynthia's reports of domestic abuse consistent and credible. Cynthia occasionally brought K.E.S. to sessions with her, and Dr. Geiger described Cynthia as very gentle and loving with K.E.S. When K.E.S. was present, Cynthia spoke softly and generally about the domestic violence and did her best not to talk about Edward in front of K.E.S. When Dr. Geiger was seeing Cynthia, Dr. Geiger had no concerns about her fitness or her psychological ability to parent K.E.S.

¶ 31 In 2013, Edward was ordered to engage in reunification therapy through Dr. Geiger's office before he could restart contact with K.E.S. The judge overseeing the dissolution selected Dr. Geiger's office for such therapy because the therapists were familiar with the family history. Edward never met with anyone at the office, however. Dr. Geiger knew that Edward had lodged a complaint that Cynthia's primary therapist, Pearson, had given her improper legal advice. The complaint was investigated and found to be unfounded.

¶ 32 Kimberly McKenzie had served as the guardian ad litem for K.E.S. during the dissolution proceedings. She testified that Judge Joseph Bruce's decision regarding custody and visitation for K.E.S. had followed four days of hearings at which almost a dozen witnesses had testified. Her report to the court in that case was admitted into evidence at the dispositional hearing. She had recommended that Cynthia have sole custody of K.E.S. and that Edward have supervised visits. Judge Bruce rejected the latter recommendation, taking over an hour to explain at length why he wanted Edward to participate in reunification counseling with Dr. Geiger's office before having any contact with K.E.S. His decision was summarized in an order entered in March 2013. That order was admitted into evidence.

¶ 33 Cynthia testified that she had a high school diploma and had completed some community college courses. Over a 10-year period ending in 2008, she worked at a local Catholic bookstore, starting as a receptionist and working her way up to running the operation. She was not working now. She had complied with all requests by DCFS and was taking her medication and going to therapy and domestic violence counseling. She testified that the car accident occurred during a mental break when she was off her medication. She was now taking different medications that were working well: Trileptal, a mood stabilizer; prazosin, for nightmares; and Seroquel, to help her sleep. She would not go off medication again, because her current medications were working better and she now had a better understanding of the symptoms that she needed to watch for. She was attending therapy every two weeks, addressing the car accident and the domestic violence, and she was willing to continue the therapy as long as necessary. Ganus was no longer assisting her, because she had gotten stronger and could better care for herself.

¶ 34 Regarding the truancy problem in 2016, K.E.S. had absences from school because of illness and trips to Madison, Wisconsin, to see her doctor. Cynthia recognized that K.E.S.'s foster mother was important to her and she promised that if K.E.S. were to be returned to her she would be willing for that to happen in a slow process that allowed K.E.S. to continue to see her foster mother. Cynthia would also follow any court orders to facilitate a relationship between K.E.S. and Edward.

¶ 35 Dr. Klemm, K.E.S.'s therapist, testified that his focus at the beginning was on the trauma of K.E.S. being removed from her home and on her adjustment to foster care. More recently, the focus had shifted to reunification with Edward. He was told by DCFS to commence monitored telephone conversations between Edward and K.E.S. K.E.S.'s reaction to the phone call when Edward said that she would be coming to live with him was "sheer panic." He told Goodman about Edward's statement and K.E.S.'s reaction and, at the request of DCFS, he wrote the court a letter describing the incident. He also later spoke to Edward about it, and Edward apologized to him for causing K.E.S. such anxiety. Dr. Klemm did not recall whether Edward ever apologized to K.E.S. about it, either on the phone or in person.

¶ 36 K.E.S. had now had a total of three in-person meetings with Edward at Dr. Klemm's office. The first one had been very short, about 30 seconds. K.E.S. was more animated and relaxed during the second one, and was withdrawn and seemed frustrated during the third one. She had not spent more than 30 minutes total with Edward in those three meetings. The meetings were proceeding at Dr. Klemm's discretion. Dr. Klemm opined that K.E.S. had not fully worked through the trauma and strong negative emotions related to her father.

¶ 37 Dr. Klemm had never met or spoken with Cynthia. K.E.S. mentioned Cynthia frequently during their sessions. K.E.S. told him that she liked visiting with her mother and would prefer to live with her.

¶ 38 Dr. Klemm did not believe that K.E.S. was ready to live with either parent. He viewed her relationship with her foster mother as close and "really positive," and he was concerned about taking that away from her. He recommended that any return home occur through a transitional period instead of abruptly. He also opined that it would benefit K.E.S. for both parents to engage in individual counseling as part of the reunification process. On cross-examination, Dr. Klemm acknowledged that K.E.S.'s foster mother had called him after the most recent face-to-face session involving Edward. She told Dr. Klemm that she had seen Edward driving in her neighborhood. Her neighborhood was a few miles away from the location of the therapy.

¶ 39 Edward testified regarding his trucking work and home life with Isler, her children, and their son. He maintained that Cynthia had lied when she accused him of abuse, and he asserted that he had never been convicted of domestic battery or violating an order of protection. He had had some of the accusations expunged. Edward was aware of the conditions placed on his ability to see K.E.S. by the 2013 custody order. After he was unable to afford the designated counseling, he decided to simply comply with the no-contact order, confident that Cynthia would again experience mental problems that would bring her to the attention of the court. In 2016, Cynthia contacted him about the truancy case, and then a few weeks later this juvenile case was opened.

¶ 40 Isler testified about her relationship with Edward and their home together. In September 2016, she accompanied Edward to the courthouse when he filed a petition in the dissolution case. The petition sought a change in custody after Cynthia was charged with permitting K.E.S.'s truancy. In January 2017, Isler also accompanied Edward to the initial counseling session recommended by DCFS. They left after they were told that Isler could not participate in the session.

¶ 41 At the close of the dispositional hearing, the parties presented closing arguments. The State, CASA, and DCFS asked that both parents be found unfit, arguing that Cynthia had not made sufficient progress in her therapy and that Edward had had almost no contact with K.E.S. for eight years and had essentially been found unfit in the 2013 custody order, which barred him from contact with K.E.S.

unless he participated in counseling. Cynthia argued that she should be found fit and asked that K.E.S. be returned, but on a gradual schedule that allowed for continued involvement with the foster mother. She argued that Edward was abusive and was not a fit parent. Edward argued that Cynthia was mentally ill, that her claims of domestic violence had never been substantiated, and that he was a fit parent. The trial court took the matter under advisement.

¶ 42 On September 26, 2017, Cynthia filed a motion for unsupervised visits.

¶ 43 On October 12, 2017, the trial court announced its ruling and entered a dispositional order. In its oral ruling, the trial court found that it was in the best interest of K.E.S. to make her a ward of the court. The trial court found Cynthia unfit, stating that she "suffers from severe mental health issues" and that, although she had made "evident" progress, it was "not necessarily specifically yet [sic ] for the return home of the minor." The trial court also found Edward unfit despite the fact that there was no finding of neglect by him, noting the restriction on visitation entered by Judge Bruce in 2013 after a four-day hearing. The trial court commented that that restriction rested on findings that Edward had engaged in domestic abuse. The trial court stated that "very little has changed between that time when that order was entered in 2013 and today," noting that, although Edward was now engaged in reunification counseling, he had not cooperated fully with recommended services. The trial court then placed the guardianship and custody of K.E.S. with DCFS, with the goal of returning home within 12 months.

¶ 44 The written order entered on the same date contained additional statements. As to Cynthia's fitness, the order stated that, "[a]lthough progress has been made by the mother in dealing with her mental health issues, her current severe mental health issues prohibit her from properly caring for the child at this time." As to Edward's fitness, the written order reiterated the trial court's oral statements and included a finding that, as reported in the orders entered in the dissolution proceedings, "there was domestic violence on the part of the father while the mother was holding the child."

¶ 45 The trial court also ordered that visits continue to be supervised. Cynthia (whose regular attorney was not present) asked that the motion for unsupervised visits be heard, but the State objected on the ground that the case was set only for status, not a hearing on the motion. DCFS reiterated that it supported unsupervised daytime visits, but the trial court declined to rule on the motion. It continued the motion for status at the next hearing, which was to be the December 5, 2017, permanency hearing.

¶ 46 On November 6, 2017, Cynthia filed a notice of appeal. Her appeal was docketed as No. 2-17-0907. Edward filed a motion for reconsideration. It was denied on December 12, 2017, and he filed an appeal (docketed as No. 2-18-0005) a few days later. We consolidated the two appeals.

¶ 47 II. ANALYSIS

¶ 48 On appeal, Cynthia challenges all aspects of the October 12, 2017, dispositional order that affect her rights. Edward specifically challenges the finding that he was unfit. For ease of discussion, we address Edward's appeal first.

¶ 49 The initial phases of neglect or abuse proceedings are governed by the Juvenile Court Act of 1987 (Act) ( 705 ILCS 405/1-1 et seq . (West 2016) ). If a child has been found to be neglected, abused, or dependent, the trial court must hold a dispositional hearing within six months of the child's removal from the home. Id. § 2-22(4). At the hearing, the court must determine whether it is in the best interests of the child and the public that the child be made a ward of the court and, if so, the disposition that will best serve "the health, safety and interests of the minor and the public." Id. § 2-22(1). Once a child has been made a ward of the court, the trial court may enter any of four types of dispositional orders. Id. § 2-23(1)(a). For a child such as K.E.S., who is already in the temporary custody of DCFS and who is not eligible for partial or complete emancipation, the only two remaining options are (1) restoring the child to the custody of a parent or guardian and (2) granting custody and guardianship of the child to DCFS pursuant to section 2-27 of the Act. Id. A court may not restore parental custody of a child who has been adjudicated neglected or abused unless the court determines, after a hearing, that the parent is fit to care for the minor. Id.

¶ 50 Section 2-27 of the Act sheds some light on the meaning of fitness in this context. Under that section, a court can grant DCFS custody and guardianship of a neglected or abused child only if it determines that the parents are "unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor[,] or are unwilling to do so, and that the health, safety, and best interest of the minor will be jeopardized if the minor remains in the custody of his or her parents." Id. § 2-27(1).

¶ 51 At the dispositional phase, the State bears the burden of proving unfitness by a preponderance of the evidence. In re A.T. , 2015 IL App (3d) 140372, ¶ 13, 389 Ill.Dec. 154, 25 N.E.3d 1180. We will not reverse a trial court's finding of unfitness unless it is against the manifest weight of the evidence, because the trial court had a superior opportunity to view and evaluate the parties. In re M.I. , 2016 IL 120232, ¶ 20, 412 Ill.Dec. 901, 77 N.E.3d 69. A decision is against the manifest weight of the evidence only if the opposite conclusion is clearly apparent. Id.

¶ 52 A. Appeal No. 2-18-0005 (Edward's Appeal)

¶ 53 Edward argues that the State did not prove that he was "unfit or * * * unable, for some reason other than financial circumstances alone," to care for K.E.S. He argues that the trial court's basis for finding him unfit was his failure to pursue reunification counseling after the 2013 custody order, but that he was unable to do so for purely financial reasons. We disagree.

¶ 54 In its dispositional order, the trial court found Edward unfit "based upon the totality of the evidence, including People's Exhibit # 10." That exhibit contained various documents from the dissolution proceedings, including the 2013 custody order in which Judge Bruce found that restricted visitation between Edward and K.E.S. was "necessary for the physical, emotional and mental well being of the child in order to protect her from danger." The trial court also specifically referred to the findings made by Judge Bruce "in the * * * divorce and order of protection cases that restricted any visitation between [Edward and K.E.S.]," and it found that "there was domestic violence on the part of the father while the mother was holding the child." In short, it is clear that the trial court's finding of unfitness was based in large part on Edward's record of domestic violence, which the trial court (like Judge Bruce) found to jeopardize the health and safety of K.E.S.

¶ 55 The trial court also noted that Edward had "failed to fully participate in [the] reunification process," with the result that "at least from March 2013 until February 2017 there was no child/parent relationship." Edward points out that, under the order of protection, he was barred from having any contact with K.E.S. except through counseling through Dr. Geiger's office. He further points to his own testimony that he could not afford the fees charged by Dr. Geiger's office. Edward argues that the trial court improperly penalized him for his financial inability to obtain the ordered counseling and that the State did not prove that he was unfit or unable to care for K.E.S. for other than financial reasons alone.

¶ 56 We reject this argument. In our view, the trial court's finding that "very little has changed * * * since that March 2013 order" and its references to Edward's failure to participate in "the reunification process" express the trial court's concern that Edward had failed to address Judge Bruce's finding that contact with him would endanger K.E.S. unless he obtained therapy. It is uncontested that Edward did not obtain such therapy. Even if he could not afford reunification counseling with Dr. Geiger's office, Edward could have obtained other individual or domestic violence counseling, but he did not. He took no steps to remedy Judge Bruce's determination that he posed a danger to K.E.S. Instead, he adopted the approach of denying that any danger existed and waiting for some emotional breakdown by Cynthia to give him an opening for renewed contact with K.E.S.

¶ 57 After the juvenile court case commenced, Edward participated in some reunification efforts through telephone and in-person visits with K.E.S. in Dr. Klemm's office, but he refused to comply with other DCFS recommendations and referrals, including a mental health assessment, individual counseling, and a home safety check. Despite the lifting of the order of protection, there was ample evidence supporting the trial court's determination that he had not addressed the dangers posed by his history of domestic violence. This evidence, rather than Edward's purported inability to afford counseling with Dr. Geiger, was the basis for the finding of unfitness. As Edward has not shown that that finding of unfitness was against the manifest weight of the evidence, we affirm the finding of unfitness.

¶ 58 B. Appeal No. 2-17-0907 (Cynthia's Appeal)

¶ 59 Cynthia challenges every aspect of the October 12, 2017, order, including (1) the trial court's determination that K.E.S. should be made a ward of the court, (2) its finding that Cynthia was unfit to care for K.E.S., (3) its grant of custody and guardianship to DCFS, and (4) its failure to grant her at least some unsupervised visitation. We consider each assertion in turn.

¶ 60 Cynthia first argues that the trial court's determination that K.E.S. should be made a ward of the court was against the manifest weight of the evidence. We disagree. A petition for wardship is a two-step process. In re Alexis H. , 401 Ill. App. 3d 543, 551, 340 Ill.Dec. 901, 929 N.E.2d 552 (2010). First, the court must determine whether a child has been neglected or abused. If an adjudication of neglect or abuse is made, the court must go on to determine, at a dispositional hearing, whether it is in the child's best interest to be made a ward of the court. Id. A court may not enter a dispositional order with respect to a neglected or abused child unless the child is first made a ward of the court. 705 ILCS 405/2-23(1)(a) (West 2016). By making a child a ward of the court, a court can, among other things, keep the case open, oversee the provision of services, and enter any protective orders necessary. Id. § 2-23(3).

¶ 61 Here, Cynthia stipulated that K.E.S. was neglected, in that Cynthia's mental health conditions prevented her from properly caring for K.E.S. at the time the State first filed its petition for a finding of neglect. Thus, there was a basis for the threshold adjudication of neglect. A trial court may consider past events in determining the best interest of the child. In re April C. , 326 Ill. App. 3d 245, 261, 260 Ill.Dec. 22, 760 N.E.2d 101 (2001). Further, the broad language of section 2-22(1), which permits the court to consider all evidence that is helpful, including incompetent evidence, evinces the legislature's intent to give the court "wide latitude" in determining the best interest of the child during a wardship proceeding. Id. ; see 705 ILCS 405/2-22(1) (West 2016). Indeed, although the adjudication of neglect or abuse and the wardship determination are two separate steps, we have found no reported case in which a child was adjudicated neglected and yet wardship was not granted. Cynthia's argument on this point is relatively broad; she focuses more on her other arguments regarding fitness, custody, and guardianship. She has not shown that it was against the manifest weight of the evidence for the trial court to make K.E.S. a ward of the court.

¶ 62 Cynthia's argument regarding the trial court's finding of unfitness is on firmer ground. Our supreme court has held that, although the best interest of the child is the overarching concern at a dispositional hearing, the Act reflects the constitutional presumption that the child's interest will best be served in the custody of a fit parent. In re M.M. , 2016 IL 119932, ¶ 26, 410 Ill.Dec. 874, 72 N.E.3d 260 (citing Troxel v. Granville , 530 U.S. 57, 68, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ). The purpose of the Act is

"to secure for each minor * * * such care and guidance, preferably in his or her own home, as will serve the safety and moral, emotional, mental, and physical welfare of the minor and the best interests of the community; [and] to preserve and strengthen the minor's family ties whenever possible, removing him or her from the custody of his or her parents only when his or her safety or welfare or the protection of the public cannot be adequately safeguarded without removal." 705 ILCS 405/1-2 (West 2016).

Thus, the " 'preferred result under the [Act] is that a child remain in his or her home, in the custody of his or her parents,' " if those parents are fit to care for the child. M.M. , 2016 IL 119932, ¶ 23, 410 Ill.Dec. 874, 72 N.E.3d 260 (quoting In re R.C. , 195 Ill. 2d 291, 308, 253 Ill.Dec. 699, 745 N.E.2d 1233 (2001) ).

¶ 63 As noted above, the State bears the burden of proving, by a preponderance of the evidence, that the child's parents are "unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor[,] or are unwilling to do so, and that the health, safety, and best interest of the minor will be jeopardized if the minor remains in the custody of his or her parents." 705 ILCS 405/2-27(1) (West 2016). Here, the State simply did not meet that burden.

¶ 64 None of the evidence regarding Cynthia's condition at the time of the dispositional hearing demonstrated that she was unable to care for K.E.S., or that K.E.S.'s health or safety would be jeopardized if she were in Cynthia's custody. The evidence was uncontradicted that Cynthia had diligently complied with all aspects of her service plan and had corrected all of the conditions that caused K.E.S. to be removed from her care. The DCFS caseworker and CASA attested that Cynthia had secured a stable home that was warm, well-stocked, and safe for K.E.S. In fact, the visits between Cynthia and K.E.S. occurred in that home. There was no evidence that any concern regarding truancy remained. Cynthia had completed all parenting classes and other services that DCFS had recommended.

¶ 65 Further, as to Cynthia's mental health-the primary reason that K.E.S. came into the State's care-the evidence showed that Cynthia sought out treatment and medication, was diligent about continuing with both, and had made good progress. Her therapist testified that she had no concerns about Cynthia's ability to parent K.E.S. and that so long as Cynthia continued with her therapy and medication there was no danger to K.E.S. Dr. Klemm recommended that K.E.S. remain with her foster mother, but that recommendation was based solely on the good relationship between K.E.S. and her foster mother. Dr. Klemm acknowledged that he had never interacted with Cynthia and had no opinion of her fitness, and K.E.S. loved Cynthia and expressed the desire to return to her. The DCFS caseworker and CASA documented appropriate interactions between Cynthia and K.E.S. during their visits, to the point that DCFS recommended unsupervised visitation. Ganus testified that Cynthia's behavior that had worried him during the winter had been fully resolved and that he viewed her as 100% better. In her own testimony, Cynthia acknowledged the importance of continuing with therapy and medication, and committed herself to that. She also demonstrated an awareness of K.E.S.'s emotional and mental needs, recognizing that K.E.S. had become close with the foster mother and pledging to allow continued contact with the foster mother.

¶ 66 All of this evidence pointed to the conclusion that Cynthia was fit to have the care and custody of K.E.S. By contrast, there was no evidence that Cynthia's current mental condition posed a danger to K.E.S. Thus, the trial court's finding that Cynthia's "current severe mental health issues" prevented her "from properly caring for the child at this time"-its basis for finding her unfit-was against the manifest weight of the evidence.

¶ 67 The State argues that, even if the evidence suggested that Cynthia was fit at the time of the dispositional hearing, there was evidence that Cynthia's mental condition in the past presented a danger to K.E.S. The State first points to the events that brought K.E.S. into its care: the car accident and Cynthia's subsequent hospitalization for three weeks in December 2016. Further, in her efforts to obtain a prompt evaluation and medication, Cynthia was hospitalized for about a week in March 2017. Of course, a trial court may consider past events. But the events that brought a child into the State's care cannot be the primary focus of the dispositional hearing months later. If they were, parents could never regain custody of their children, because the same situation exists in any neglect or abuse case. There is always a safety concern at the start of the case; that is why the child was removed to begin with. Under the Act, the State must show that the safety concern continues and rises to the level that "the health, safety, and best interest of the minor will be jeopardized if the minor remains in [or is returned to] the custody of his or her parents." Id. The evidence here did not demonstrate that this standard was met.

¶ 68 The State also points to evidence from further back in Cynthia's past: the intact-family case that was opened in 2008 and the indications of Cynthia's mental instability during that time, including a suicide attempt. This evidence, like the evidence regarding conditions at the start of the case, could be considered by the trial court. However, being more remote in time, this evidence was also less probative of Cynthia's current fitness to care for her child. We also note that, even then, DCFS evidently did not view Cynthia as a threat to the well-being of K.E.S., as it left K.E.S. in her care and closed the case after one year. In addition, Cynthia's psychiatrist from that time, Dr. Geiger, testified that she had had no concerns about Cynthia's ability to safely parent K.E.S.

¶ 69 Further, the trial court itself did not base its finding of unfitness on Cynthia's history. Rather, it cited "current severe mental health issues." There was no evidence that Cynthia currently had any such "severe mental health issues." Accordingly, its finding of unfitness was against the manifest weight of the evidence.

¶ 70 It is clear that the trial court was worried about whether Cynthia would remain on her medication and in therapy. This was a natural and appropriate concern. However, the same concern could be raised with respect to any parent who suffers from mental illness. Mental illness does not, by itself, render a parent unfit. See R.C. , 195 Ill. 2d at 305, 253 Ill.Dec. 699, 745 N.E.2d 1233 (under the Adoption Act, mental illness alone does not allow a finding of unfitness; there must also be proof that the parent's mental condition renders her unable to discharge her parental responsibilities and that the inability will continue beyond a reasonable time); A.T. , 2015 IL App (3d) 140372, ¶ 16, 389 Ill.Dec. 154, 25 N.E.3d 1180 (a diagnostic label such as "depression" is not, standing alone, a reliable indicator of a parent's "level of functionality" and "a diagnosis of depression, anxiety, a personality disorder or even schizophrenia does not automatically render a parent unfit"). Here, there was no indication that Cynthia was in any particular danger of going off her medication or that her mental condition was likely to worsen. The mere possibility that this could happen is not a sufficient basis for a finding of unfitness.

¶ 71 Further, as K.E.S. was appropriately made a ward of the court, any worries that the trial court had could have been addressed through a variety of means apart from a finding of unfitness. For instance, although custody of a child cannot be granted to a third party where the parent is fit ( M.M. , 2016 IL 119932, ¶ 21, 410 Ill.Dec. 874, 72 N.E.3d 260 ), a court can continue to oversee the care of the child and the provision of services to the parent by granting guardianship to DCFS. See In re M.P. , 408 Ill. App. 3d 1070, 1074, 349 Ill.Dec. 45, 945 N.E.2d 1197 (2011) ("section 1-3 of the Act contemplates that a trial court may divide guardianship and custody of a minor"); In re E.L. , 353 Ill. App. 3d 894, 898, 289 Ill.Dec. 391, 819 N.E.2d 1191 (2004) (under section 2-27 of the Act, DCFS may be granted guardianship of the child even where a parent has custody). We do not mean to suggest that this is the appropriate outcome here. We merely point out that the desire to continue to monitor the parent-child relationship does not, by itself, justify finding an otherwise fit parent to be unfit.

¶ 72 For all of these reasons, we reverse the trial court's finding that Cynthia was unfit and remand the case for further consideration of an appropriate disposition. In light of our holding, we need not consider Cynthia's further arguments. However, we note for the record our dismay at the length of time that passed before the trial court resolved the request that Cynthia be permitted unsupervised visits with K.E.S. DCFS first recommended allowing such unsupervised visits in its May 2017 report. It repeated that recommendation in July at the dispositional hearing, and CASA stated that it had no objection to unsupervised visits. Cynthia formally moved for such visits in September. Nevertheless, the trial court did not grant such visits until mid-December. Regular visits are essential to maintaining and strengthening the parent-child relationship, and thus such visits should be as frequent, long, and unmonitored as is consistent with the child's safety and parental and agency resources. Where, as here, the agencies charged with the child's safety and well-being recommend unsupervised or increased visits, it is incumbent on the trial court to rule promptly on that recommendation.

¶ 73 III. CONCLUSION

¶ 74 The October 12, 2017, dispositional order of the circuit court of Ogle County is affirmed as to the determination making K.E.S. a ward of the court, affirmed as to the finding that Edward was unfit, reversed as to the finding that Cynthia was unfit, and remanded for further proceedings.

¶ 75 Affirmed in part and reversed in part.

¶ 76 Cause remanded.

Justice Spence concurred in the judgment and opinion.

Presiding Justice Hudson specially concurred, with opinion.

¶ 77 PRESIDING JUSTICE HUDSON, specially concurring:

¶ 78 I am compelled to concur in the majority's decision that the trial court's finding of Cynthia's unfitness was against the manifest weight of the evidence. As noted by the majority, mental illness does not, by itself, render a parent unfit. See R.C. , 195 Ill. 2d at 305, 253 Ill.Dec. 699, 745 N.E.2d 1233 ; A.T. , 2015 IL App (3d) 140372, ¶ 16, 389 Ill.Dec. 154, 25 N.E.3d 1180. The evidence presented at the dispositional hearing did not establish that Cynthia's current mental condition rendered her unable to discharge her parental responsibilities.

¶ 79 I write separately, however, to emphasize the paramount concern in this case-K.E.S.'s health and safety. The trial court was apprehensive about Cynthia's continued adherence to her medication and therapy. Cynthia, too, sought caution by arguing at the dispositional hearing that K.E.S. should be returned to her custody but on a gradual schedule that allowed for continued involvement with the foster mother. There are means to address this concern. As noted by the majority, the trial court may appropriately consider the option of granting custody to Cynthia and guardianship to DCFS. See M.P. , 408 Ill. App. 3d at 1074, 349 Ill.Dec. 45, 945 N.E.2d 1197 ;

E.L. , 353 Ill. App. 3d at 898, 289 Ill.Dec. 391, 819 N.E.2d 1191. Additionally, the trial court may require all necessary supervision and services to be in place before returning custody to Cynthia. This approach would allow for continued supervision of K.E.S.'s care while ultimately returning K.E.S. to her mother's custody-an approach that would perhaps address the reservations of both the trial court and Cynthia herself.

      Illinois Supreme Court Rule 311(a)(5) requires a reviewing court to issue its decision in a neglect or abuse case within 150 days after the notice of appeal was filed. Ill. S. Ct. R. 311(a)(5) (eff. Mar. 8, 2016). Under that rule, our decision in Cynthia's appeal was due by April 5, 2018, while our decision in Edward's appeal was due by May 28, 2018. The consolidation of the appeals caused some delay. As a result, this decision is being issued shortly after the 150day period for Cynthia's appeal expired, but within the deadline for Edward's appeal.

      If the State later files a petition to terminate parental rights, it must meet a higher burden of proof, presenting clear and convincing evidence of unfitness pursuant to section 1 of the Adoption Act (750 ILCS 50/1 (West 2016) ). See In re Lakita B. , 297 Ill. App. 3d 985, 993-94, 232 Ill.Dec. 88, 697 N.E.2d 830 (1998) (explaining the State's different burdens of proof at different stages of neglect or abuse proceedings). Thus, a finding of unfitness at the dispositional phase does not automatically translate into a finding of unfitness at the termination phase.


text:
    LOMTO FEDERAL CREDIT UNION, Plaintiff, v. 6500 WESTERN LLC; Chicago Taxi Leasing, Inc.; Taxi Town, Inc. ; Unknown Owners and Non-Record Claimants, Defendants
    (Michael J. Eber, Receiver-Appellee;
    6500 Western LLC, Chicago Taxi Leasing, Inc., and Taxi Town, Inc., Defendants-Appellants).
    No. 1-17-3106
    Appellate Court of Illinois, First District, FIRST DIVISION.
    April 23, 2018
    Cohon Raizes & Regal LLP, of Chicago (Cornelius P. Brown and Caroline K. Kwak, of counsel), for appellants.
    Carlson Dash, LLC, of Chicago (Kurt M. Carlson and Steven D. Mroczkowski, of counsel), for appellee.
   JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 This appeal involves an interlocutory order, granting the receiver's motion to increase rent, determine market value rental rates of property, and employ a real estate valuation professional. On appeal, defendants, 6500 Western LLC, Chicago Taxi Leasing, Inc. (Chicago Taxi), and Taxi Town, Inc. (Taxi Town), contend the court erred in (1) permitting an increase in rent pursuant to section 15-1704(g) of the Illinois Mortgage Foreclosure Law ( 735 ILCS 5/15-1704(g) (West 2016) ), when a lease agreement exists, and (2) permitting an increase to the market rental rates for the property. For the following reasons, we vacate the order and remand for further proceedings consistent with this opinion.

¶ 2 JURISDICTION

¶ 3 The trial court entered an interlocutory order, granting the receiver's motion on November 21, 2017. Defendants filed their notice of appeal on December 15, 2017. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 307(a)(3) (eff. Nov. 1, 2017), governing interlocutory appeals as of right.

¶ 4 BACKGROUND

¶ 5 The property at issue is located at 6500 N. Western Avenue in Chicago, Illinois. The commercial property is improved with a 28,200-square-foot building used by defendants Chicago Taxi and Taxi Town. On April 21, 2017, plaintiff LOMTO Federal Credit Union filed its commercial foreclosure action against defendants. On May 10, 2017, plaintiff filed a motion for immediate possession and appointment of a receiver.

¶ 6 Adrian Tudor, the manager of 6500 Western LLC, is also president of both Chicago Taxi and Taxi Town. On or about June 1, 2017, 6500 Western LLC executed leases with Chicago Taxi and Taxi Town for "that portion of the premises * * * currently occupied by the Tenant(s)." Under each lease, the tenant pays $4000 per month as rent, and the lease term expires on May 31, 2022. The lease agreements contain no provision for a security deposit or for payment of utilities, and the landlord is responsible for maintenance and repairs during the lease term. The combined rent from these leases is $8000 per month, which is approximately $3.40 per improved square foot per year.

¶ 7 On June 16, 2017, the trial court granted plaintiff's motion for immediate possession and to appoint a receiver. On July 24, 2017, the receiver sent a letter to 6500 Western LLC listing the estimated monthly expenses of the property per month, including $11,822 for property taxes, $935.26 for insurance, $2000 for snow removal and landscaping, $2000 for repairs to the roof and sewer/drainage systems, and $2000 placed in a capital repair reserve escrow. This total estimated cost of $18,758.03 per month did not include utilities the landlord may be responsible for under the lease agreements. The receiver informed 6500 Western LLC that the $8000 per month received in rent "is not sufficient to cover the expenses and it leaves no cash available to pay current debt service (principal and interest payments) nor any reasonable rate of return." According to preliminary market rate data gathered by the receiver, a more appropriate monthly rent would total $37,600 per month.

¶ 8 On August 7, 2017, the receiver filed his first report, which included the detailed monthly cost estimates in the July 24, 2017, letter. The court approved the report and on September 6, 2017, the receiver filed his motion to increase rent, determine market value rental rates of property, and employ a real estate valuation professional. In the motion, the receiver set forth the monthly landlord costs of the property listed in his first report, but added $3506.38 for utility payments for a total of $22,264.41 per month. The motion requested that the trial court "enter an order raising the rent, on an interim basis, to be paid by Taxi Town, Inc. and Chicago Taxi Leasing, Inc., to an aggregate amount that is sufficient to cover maintenance, repair and operation of the property on a monthly basis."

¶ 9 The receiver also requested that the court enter an order to allow for "a real estate valuation professional to determine market-based rental rates for the Property and subsequently hold a hearing to determine whether rental rates shall be adjusted to market rate or kept at operating cost levels." In support, the receiver filed an affidavit of Brent L. Burden, a licensed real estate broker. Burden measured the 6500 N. Western Avenue property against two comparable commercial properties in the area using Costar, a "widely accepted * * * industry standard tool for conducting research related to commercial property rentals and sales." Property located at 6100 N. Clark Street, when used as an auto dealership, had a rental rate of $18.56 annually per square foot, triple net. The property at 6017 N. Western Avenue, which has been used as an auto dealership and taxi parking lot, had starting rental rates of $19 annually per square foot, triple net. Triple net pricing "refers to a common industry standard where * * * the tenant is responsible for paying 1) property taxes; 2) building insurance; and, 3) any common area maintenance during the lease term. These costs are paid in addition to the rent." Therefore, "[g]ross rental rates are usually higher than those calculated on a triple net basis because [in those cases] the landlord pays property taxes, insurance, and maintenance costs out of the rent received from the tenant."

¶ 10 Burden found that in the lease agreements signed by Chicago Taxi and Taxi Town, "the tenants appear to be responsible solely for the payment of a flat rental rate and the landlord pays property taxes, insurance, and maintenance costs for the Property. This equates to approximately $3.43 annually per square foot, gross" which "falls substantially below market value." In his opinion, the rental rates of the 6500 N. Western Avenue property "fall in the range of $14 to $18 annually per square foot, triple net."

¶ 11 In response, defendants argued that section 15-1704(g) does not allow a receiver to seek an increase in rent when a lease agreement already exists and, alternatively, that the receiver did not meet his burden in order to increase the rent. After hearing oral argument, the trial court granted the receiver's motion and allowed him to increase the rental rates "to the rates specified in the Affidavit, to wit, $14/square foot to $18/square foot annually, triple net." The court denied the receiver's request for retroactive application of his motion and ordered that the increased rates take effect on the day of the order, November 21, 2017. Defendants timely appealed.

¶ 12 ANALYSIS

¶ 13 On appeal, defendants contend the trial court erred in allowing the receiver to increase rents because section 15-1704(g) only authorizes an increase when a party is occupying property without a lease agreement, and Chicago Taxi and Taxi Town are paying rent pursuant to lease agreements. When construing a statute, the primary goal is to ascertain and give effect to the legislature's intent as reflected in the plain and ordinary meaning of the statutory language itself. People v. Lloyd , 2013 IL 113510, ¶ 25, 369 Ill.Dec. 759, 987 N.E.2d 386. "A court must view the statute as a whole, construing words and phrases in light of other relevant statutory provisions and not in isolation." People v. Perez , 2014 IL 115927, ¶ 9, 385 Ill.Dec. 41, 18 N.E.3d 41. Likewise, a court must give effect to every word, clause, and sentence of a statute if possible, and no part should be rendered superfluous. Id. The court may also "consider the reason for the law, the problems sought to be remedied, the purposes to be achieved, and the consequences of construing the statute one way or another." Id. We review questions of statutory construction de novo . Evanston Insurance Co. v. Riseborough , 2014 IL 114271, ¶ 13, 378 Ill.Dec. 778, 5 N.E.3d 158.

¶ 14 Section 15-1704(g), titled "Increase of rents," provides:

"Notwithstanding any other provision of this Article, a receiver shall not charge an occupant of the mortgaged real estate a rental amount above that which the occupant had been paying for use and occupancy of the mortgaged real estate prior to the appointment of a receiver without leave of court. The court may allow an increase of rent if, upon motion by the receiver, the court finds by a preponderance of the evidence, that the increase of rent is necessary to operate, manage, and conserve the mortgaged real estate pursuant to this Section. * * * Nothing in this subsection (g) shall alter the terms of any lease agreement." (Emphasis added.) 735 ILCS 5/15-1704(g) (West 2016).

¶ 15 Defendants argue that the emphasized phrase limits the occupants subject to increased rents to those who are paying for use and occupancy, and does not include occupants who signed lease agreements. Although "use and occupancy" is not defined in the statute, defendants point to its use in section 9-201 of the Forcible Entry and Detainer Act (id. § 9-201(2) ) as guidance. Section 9-201 states that when "lands are held and occupied by any person without any special agreement for rent," landowners may recover rent "or a fair and reasonable satisfaction for the use and occupation thereof." Id. Since section 9-201 involves the recovery of rent for "use and occupation" in cases where no lease agreement exists, defendants contend that the phrase "use and occupancy" in section 15-1704(g) also refers only to persons occupying property without a lease agreement.

¶ 16 We disagree. Although defendants cite cases where no lease agreement exists and "the law implies a promise on the part of the occupant to pay * * * for use and occupation thereof," (internal quotation marks omitted) ( Board of Directors of the Warren Boulevard Condominium Ass'n v. Milton , 399 Ill. App. 3d 922, 926, 339 Ill.Dec. 635, 927 N.E.2d 176 (2010) ), payment under "rental agreements" and payment for "use and occupancy" are not mutually exclusive. Generally, "rent" has been " 'defined as the recompense for the use and occupancy of lands,' " regardless of whether an agreement exists between the parties. Chicago Housing Authority v. Bild , 346 Ill. App. 272, 276, 104 N.E.2d 666 (1952) (involving a lease agreement between the parties) (quoting Stein v. Stely , 32 S.W. 782, 783 (Tex. Civ. App. 1895) ). In fact, the phrase "use and occupancy" as it pertains to rental agreements can be found in the Evanston City Code as well as the Chicago Municipal Code. Section 5-3-2(A) of the Evanston City Code defines "rental agreement" as "A written agreement * * * embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises." Evanston City Code § 5-3-2(A) (Jan. 23, 2002). Likewise, section 5-12-030 of the Chicago Municipal Code states that " 'Rental agreement' means all written or oral agreements embodying the terms and conditions concerning the use and occupancy of a dwelling unit by a tenant." Chicago Municipal Code § 5-12-030(a) (amended May 12, 2010).

¶ 17 Also, "[w]e must examine the [statutory] language as a whole and consider each part or section in connection with every other part or section." Northwest Diversified, Inc. v. Mauer , 341 Ill. App. 3d 27, 36, 274 Ill.Dec. 751, 791 N.E.2d 1162 (2003). Section 15-1704 sets forth the powers and duties of receivers appointed by the court. According to the plain language of the statute, receivers "shall have full power and authority to operate, manage and conserve" the subject property, including the collection of "rents, issues and profits from the mortgaged real estate." 735 ILCS 5/15-1704(b)(2) (West 2016). Subsection (c) specifically lists duties of the receiver in managing the property. However, these duties only apply "to the extent the receiver receives sufficient receipts from the mortgaged real estate." Id. § 15-1704(c). Subsection (g) provides that in cases where receipts from the property prove insufficient, the receiver may file a motion showing an "increase of rent is necessary to operate, manage, and conserve the mortgaged real estate pursuant to this Section." Id. § 15-1704(g).

¶ 18 Reading section 15-1704 as a whole, the receiver has "full power and authority to operate, manage and conserve" the mortgaged real estate by using receipts from the property, and subsection (g) allows the receiver to seek an increase in rent if the receipts prove insufficient for him to perform his duties. Nothing in the statutory language indicates an intent to allow increases only from occupants who pay rent without a lease agreement. Rather, limiting the application of subsection (g) in such a manner defeats the legislature's intent, since the receiver's ability to obtain receipts necessary to operate, manage, and conserve the property would be restricted. Courts will not read into a statute limitations or conditions that depart from the legislature's intent as indicated by the plain meaning of the statutory language. Northwest Diversified, Inc. , 341 Ill. App. 3d at 36, 274 Ill.Dec. 751, 791 N.E.2d 1162. Furthermore, under defendants' interpretation if all the occupants of a property had lease agreements, subsection (g) would have no application whatsoever. "[C]ourts must give effect to every word, clause, and sentence and may not read a statute so as to render any part inoperative, superfluous, or insignificant." Newland v. Budget Rent-A-Car Systems, Inc. , 319 Ill. App. 3d 453, 456, 253 Ill.Dec. 169, 744 N.E.2d 902 (2001).

¶ 19 Defendants also contend that subsection (g) applies only to occupants without lease agreements because it uses the word "occupant" rather than "lessee," and a party under a lease agreement is generally referred to as a "lessee." As further support, defendants point to the last sentence of the provision, which states that "[n]othing in this subsection (g) shall alter the terms of any lease agreement." 735 ILCS 5/15-1704(g) (West 2016). They argue that raising rents can only apply to parties without lease agreements because such an increase would alter the terms of an existing lease contrary to the intent stated in the last sentence.

¶ 20 First, we disagree with defendants' interpretation of "occupant" in subsection (g). Throughout section 15-1704, "occupant" is used to describe all parties who occupy a dwelling unit in the mortgaged real estate without limitation. See id. § 15-1704(c)(2.5) (the receiver "shall accept all rental payments from an occupant"); id. § 15-1704(f)(1) (the receiver shall identify "all occupants of dwelling units of the mortgaged real estate"); id. § 15-1704(f)(2) ("the appointed receiver shall notify all known occupants of dwelling units"). The term "lessee" appears only once, in subsection (b)(1), which provides that the receiver shall have the authority to "secure tenants and execute leases for the real estate" and that "nothing in this Section shall affect the legal rights of any lessee with respect to the safety and habitability of the residential real estate."Id. § 15-1704(b)(1). The fact that "lessee" is used only in the subsection specifically dealing with the execution of leases by the receiver, but "occupant" is used throughout the rest of the section to describe any party dwelling in a unit of the mortgaged property, indicates that the legislature intended for the remaining provisions of section 15-1704 to encompass all occupants of the property regardless of whether a lease agreement exists.

¶ 21 Additionally, increasing rents pursuant to subsection (g) does not alter the terms of defendants' existing lease agreements. Section 15-1704(g) was in effect when the parties executed their lease agreements. "[C]ontracting parties are presumed to have entered into the contract with a knowledge of the existing law as it relates to their agreement," and by operation of law, such "laws, statutes and ordinances become implied terms of the contract." S & D Service, Inc. v. 915-925 W. Schubert Condominium Ass'n , 132 Ill. App. 3d 1019, 1023, 88 Ill.Dec. 163, 478 N.E.2d 478 (1985). Since the lease agreements did not specifically exclude the effect of subsection (g), defendants are deemed to have accepted this provision as an implied term of their agreements. Id. The subsection's last sentence merely reflects this rule of law by stating that an increase in rent pursuant to this statutory provision does not alter the terms of any lease agreement.

¶ 22 For these reasons, we find that section 15-1704(g) allows the receiver to seek an increase in rent from defendants through leave of court.

¶ 23 Alternatively, defendants contend that if subsection (g) allows the receiver to seek an increase in their rent, the trial court exceeded its authority when it allowed an increase to the market rental rate without evidence to support such an increase. Subsection (g) authorizes the court, upon motion by the receiver, to allow an increase in rent an occupant has been paying if it finds by a preponderance of the evidence that the increase "is necessary to operate, manage, and conserve the mortgaged real estate pursuant to this Section." 735 ILCS 5/15-1704(g) (West 2016). It follows that the increased rate must be an amount "necessary to operate, manage, and conserve" the property.

¶ 24 To determine the appropriate rate pursuant to subsection (g), we look at the plain language of the statute. Section 15-1704, which grants the receiver "full power and authority to operate, manage and conserve" the property ( id. § 5/15-1704(b) ), also specifies in subsections (c) and (d) the receiver's duties and how receipts from the mortgaged property shall be allocated. Subsection (c) provides that the receiver "must manage the mortgaged real estate as would a prudent person," and in managing the property, the receiver shall maintain casualty and liability insurance, "use reasonable efforts to maintain the real estate * * * in at least as good condition as existed at the time the receiver took possession," accept all rental payments, "apply receipts to payment of ordinary operating expenses," and pay any shared or common expenses. Id. § 15-1704(c). The receiver may also make other repairs and improvements necessary to comply with building codes, "hold receipts as reserves reasonably required for the foregoing purposes," and take actions "reasonably necessary to conserve the mortgaged real estate." Id. To perform these duties, the receiver uses receipts received from the property. Subsection (d) provides that the receiver shall first use receipts to reimburse the receiver and for payments of insurance premiums and various fees. Id. § 15-1704(d). After making those payments, the receiver applies the remaining receipts to expenses listed in subsection (c). Id.

¶ 25 Reading section 15-1704 as a whole, we find that subsections (c) and (d) set forth the receiver's duties in operating, managing, and conserving the mortgaged real estate. Therefore, since subsection (g) allows an increase in rent above the amount that the occupants had been paying only if "necessary to operate, manage, and conserve" the property, any increase allowed must be necessary for the receiver to perform his duties as set forth in subsections (c) and (d).

¶ 26 The trial court below allowed an increase "to the rates specified in the Affidavit, to wit, $14/square foot to $18/square foot annually, triple net." However, as stated by Brent Burden in his affidavit, this rate is the market value rate. His affidavit contains no statements regarding an appropriate rate given the costs, expenses, and fees outlined in subsections (c) and (d).

¶ 27 Market value rental rate is not synonymous with the rental rate necessary to cover operating costs and expenses incurred in managing a property. Rather, the market value rate is " 'the amount a willing lessee will pay a willing lessor, in a voluntary transaction, for the right to use and occupy the premises.' " Monroe Dearborn Ltd. Partnership v. Board of Education of the City of Chicago , 271 Ill. App. 3d 457, 463, 208 Ill.Dec. 133, 648 N.E.2d 1055 (1995) (quoting People ex rel. Korzen v. American Airlines, Inc. , 39 Ill. 2d 11, 18, 233 N.E.2d 568 (1967) ). Although such a rate presumably covers the lessor's operating costs and expenses, it also reflects "the property's capacity for earning income." Kankakee County Board of Review v. Property Tax Appeal Board , 131 Ill. 2d 1, 15, 136 Ill.Dec. 76, 544 N.E.2d 762 (1989). Section 15-1704(g) provides that the court may increase the rent occupants had been paying prior to the appointment of the receiver, but only if it finds the increased rent "is necessary to operate, manage, and conserve the mortgaged real estate." 735 ILCS 5/15-1704(g) (West 2016). Nothing in the plain language of subsection (g) allows for an increase to the market value rental rate if that rate exceeds the amount the receiver needs to perform his duties under the statute.

¶ 28 Our interpretation is further supported when we compare section 15-1704(g) to section 15-1704(b)(1). Section 15-1704(b)(1) provides that the receiver has the authority to secure tenants and execute new leases "the duration and terms of which are reasonable and customary for the type of use involved." Id. § 15-1704(b)(1). Unlike section 15-1704(g), subsection (b)(1) does not limit the rental rate to one that is necessary to operate, manage, and conserve the property. This distinction makes sense. The receiver, given his "full power and authority to operate, manage, and conserve" the property, should be able to execute new leases for the market value rental rate. It is also reasonable to limit the receiver's authority to increase the rent of occupants who have been paying rent pursuant to existing leases, and to limit such increases to the amount necessary to operate, manage, and conserve the property even if the market rate is higher. "[S]tatutes should be construed to give them a reasonable meaning and to avoid absurdity or hardship." Hearne v. Chicago School Reform Board of Trustees of the Board of Education for the City of Chicago , 322 Ill. App. 3d 467, 476, 255 Ill.Dec. 310, 749 N.E.2d 411 (2001).

¶ 29 Here, the receiver specified the monthly operating costs of 6500 N. Western Avenue-including property taxes, insurance, and utilities-as $22,264.41. Adding the interest on unpaid property taxes, which continues to accrue at approximately $2129.09 monthly, the monthly expenses total $24,393.50, or approximately $10.38 annually per square foot, triple net. We note that this amount does not include the fees incurred by the receiver, for which he must be reimbursed pursuant to subsection (d). Still, it is substantially less than the market rate of $14 to $18 annually per square foot allowed by the trial court pursuant to Burden's affidavit. Therefore, we vacate the court's order allowing an increase in rent to the market value rate, and remand for proceedings to determine an appropriate increase as authorized by section 15-1704(g).

¶ 30 For the foregoing reasons, we affirm the trial court's determination that section 15-1704(g) allows the receiver to seek an increase of rent from occupants who have lease agreements, but vacate the trial court's order allowing an increase to market value rental rates. We remand the cause for proceedings consistent with this opinion.

¶ 31 Order vacated and cause remanded.

Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.

      On appeal, the receiver challenges the validity of the leases Chicago Taxi and Taxi Town executed and argues whether subsection (g) has any application as a result. However, this is an interlocutory appeal with a limited scope of review. People v. Johnson , 208 Ill. 2d 118, 145, 281 Ill.Dec. 38, 803 N.E.2d 442 (2003). Illinois Supreme Court Rule 307(a)(3) (eff. Nov. 1, 2017) limits our consideration to the "giving or refusing to give other or further powers or property to a receiver * * * already appointed."