author: JUSTICE MEJDA

text:
      In re MARVIN JOHNSON, a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. MARVIN BELTON, Respondent-Appellant.)
    First District (5th Division)
    Nos. 79-2028, 80-2070 cons.
    Opinion filed December 28, 1981.

      Ralph Ruebner, of State Appellate Defender’s Office, of Chicago (Mary M. McCormick, of Northwestern University Legal Clinic, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Joan Cherry, Alphonse R. Tomaso, Richard F. Burke, and John A. Witten, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Appellant, the father of Marvin Johnson (the minor), appealed orders of the trial court finding his son neglected, adjudging him a ward of the court, finding appellant unfit and appointing Richard S. Laymon guardian with right to place. Subsequent to the filing of appellant’s appeal from those orders, the trial court entered another order finding the mother fit and returning the minor to her. Appellant also filed an appeal from this order. These two cases have been consolidated for purposes of this appeal.

The issues raised in these appeals are: (1) whether the trial court erred in accepting an admission from appellant at the adjudicatory hearing without first appointing independent counsel to represent him; (2) whether the trial court erred in refusing to grant appellant’s motion to withdraw his stipulation of facts and admission; (3) whether the trial court erred in refusing to grant appellant’s motion for a new trial; and (4) whether the trial court had jurisdiction to enter its order finding the mother fit and placing the minor with his mother.

A neglect petition was filed on behalf of the minor. The petition alleged in pertinent part that the minor was born September 9,1977, that he had numerous first degree burns over his buttocks, penis, scrotum and legs, which according to medical opinion were consistent with burns inflicted with cigarettes; that on or about May 31,1978, the minor’s mother stated that appellant, Marvin Belton, also known as Marvin Jones, inflicted the burns on the minor; that on or about May 31,1978, a relative of the minor alleged that the mother had caused the injuries; that on or about May 31, 1978, a neighbor of the mother alleged that she had witnessed the mother inflicting the injuries on the minor; that on or about March 31, 1978, the minor was treated for a fracture of the left humerus; and that the minor had been injured on that date when the mother and Marvin Belton fought over him. The petition requested that Richard S. Laymon be appointed temporary custodian of the minor; that the temporary custodian be ordered not to return him to the custody of his mother, and that he be adjudged a ward of the court, and for other relief appropriate under the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701 — 1 et seq.).

On June 2, 1978, a temporary custody hearing was held at which a guardian ad litem was appointed for the minor. The guardian ad litem was also appointed to serve as counsel for the minor. The Cook County Public Defender was appointed as counsel for the mother and was also appointed as her guardian ad litem because she was 15 years of age. The mother testified that the father of the minor was Marvin Lee Burton. The petition was amended to show Marvin Burton as the father of the child. Temporary custody of the minor was given to Richard S. Laymon and a social investigation was ordered. The case was continued to June 23,1978.

On June 23, 1978, the appellant appeared without counsel at the hearing. The minor’s mother stated that he was the father of the minor. The appellant also acknowledged that he was the father of the child. In response to questioning by the court, the appellant stated he was unable ' to afford a lawyer and that he wanted a public defender appointed to represent him. After a brief recess during which time appellant conversed with the assistant public defender, the latter told the court that he believed that “there is going to be a conflict.” Appellant was then referred to Chicago Volunteer Legal Services. After the court requested the State have appellant sign an appearance and waiver of service, the case was continued.

On July 7, 1978, appellant appeared before the court and advised it that Chicago Volunteer Legal Services would not accept the case. The court inquired of the assistant public defender whether a conflict existed between the mother and appellant to which the assistant public defender affirmatively responded. The court then referred appellant to a private attorney.

On August 1, 1978, the Assistant State’s Attorney told the court that the parents of the child were prepared to make an admission based on a stipulation of facts as alleged in the petition. The assistant public defender reminded the court that he only represented the mother; that private counsel had been appointed for appellant, and therefore, he could not speak in appellant’s behalf. The court stated to appellant that it understood that he had failed to keep his appointment with the private attorney appointed to represent him. Appellant responded that he had missed the appointment because of illness, and although unsuccessful in his efforts, had tried to reschedule it. The court asked appellant if it was true as indicated by the Assistant State’s Attorney that he wished to enter an admission in the case and that he agreed to the appointment of a guardian for his son. Appellant responded affirmatively. The court then inquired of appellant if he understood that although Richard S. Laymon would be appointed the child’s guardian, placement would be with the child’s maternal aunt. Appellant responded that he undertood that and agreed to it. The assistant public defender stated that at the time the hearing was first set there was a conflict, but perhaps if there now was no conflict, he could also be appointed to represent appellant. The court appointed the assistant public defender to represent the father. The court then accepted the admission of both parents. The assistant public defender stipulated to the facts as alleged in the petition. The court made a finding of neglect based upon the stipulation pursuant to section 2 — 4(1) (b) of the Juvenile Court Act (Ill. Rev. Stat. 1977, eh. 37, par. 702 — 4(1)(b)) and allowed the temporary custody order to stand, while referring the parents to clinical services for evaluation. The court also made a finding of best interests and an adjudication of wardship.

On November 6, 1978, the Assistant State’s Attorney advised the court that the clinical services report had been completed, and that the State was seeking appointment of a guardian, with continued placement with a maternal aunt. The assistant public defender stated that neither the mother nor the father desired that a guardian be appointed for the minor and that they could not agree on any other suitable disposition. The assistant public defender requested leave to withdraw as attorney for the mother but to continue as counsel for appellant. The court, however, referred appellant to the presiding judge for appointment of counsel. Subsequently, an attorney was appointed to represent appellant.

On March 5, 1979, appellant’s attorney filed a motion to withdraw appellant’s stipulation of facts and admission and to request the court to vacate its finding of neglect. The court denied appellant’s motion and continued the disposition hearing to April 19, 1979.

On April 19,1979, appellant’s counsel and the mother’s counsel joined in a motion for a new trial claiming that appellant had been denied effective representation at the August 1,1978, hearing. The court denied the motion and proceeded to hear evidence at the dispositional phase of the neglect proceedings. Doris Bowie, a social worker for the Illinois Department of Children and Family Services, who had been assigned to the case of the minor since December 1978, testified on behalf of the State.

She stated that in her opinion Richard S. Laymon should be appointed guardian of the minor with the right to place the child, the intended placement to be in the home of the maternal aunt. She based her opinion on her interviews with each parent and the case studies conducted by a psychiatrist with the Department of Clinical Services and a psychologist from Ebony Management. The Clinical Services report concluded that neither parent was capable of functioning as a responsible parent. The Ebony Management report concluded that the mother was not sufficiently mature to adequately care for the minor. Bowie stated that she thought it correct to say that each parent had accused the other of causing the problems.

Appellant testified that the minor was his son and that it was his desire that he be placed in his custody so that he could care for him. He stated that it was his intention to support him to the best of his ability.

The mother testified that she was a 10th-grade student at Hyde Park Career Academy. It was her desire that the minor be returned to her. She testified that she did not abuse the child in any way. If the child was returned to her, she planned to support him through public aid.

After hearing all of the evidence, the court entered a finding of unfitness and best interest, vacated the temporary custody order, and appointed Richard S. Laymon as guardian with the right to place the minor. The court informed the parents that they still remained the minor’s parents with the right and duty to correct the conditions that necessitated the appointment of a guardian. At the conclusion of the April 19, 1979, hearing appellant filed a notice of appeal from the trial court’s dispositional order.

On November 30, 1979, the mother of the minor filed a notice and petition for supplemental relief, requesting the trial court to vacate the previously entered guardianship order and return custody to her. On April 1, 1980, appellant informed the court that he had filed an appeal from its prior dispositional order. On June 18, 1980, both the State and appellant argued to the court that appellant’s prior appeal had divested the court of the jurisdiction necessary to amend its prior dispositional order. Counsel for the mother and the guardian ad litem argued that the court had jurisdiction to amend the previous order. The court ruled that it had jurisdiction. A supplemental hearing was then conducted in which Doris Bowie, the social worker who testified at the disposition hearing, testified that it was now her opinion that the minor should be returned to his mother’s custody. A clinical evaluation completed by Dr. J. M. Whitman of the Department of Clinical Services was received into evidence. The report concluded that the minor could be safely returned to his mother. It was also stipulated that if Sidney Osborne, the mother’s counselor, was called as a witness he would have recommended that the minor be returned to his mother.

After hearing the evidence the court entered a finding of fitness as to the mother with leave to return the minor to her upon receipt of the police clearance of her boyfriend with whom she was presently living. Appellant appealed the court’s supplemental order. These two appeals, taken by appellant from the trial court’s original April 19, 1979, order and its June 18,1980, supplemental order were consolidated for purposes of oral argument and the issuance of this opinion.

Opinion

Appellant first contends that the trial court erred in accepting his admission at the August 1, 1978, adjudicatory hearing without first appointing independent counsel to represent him, as a conflict existed between appellant and the mother of the minor.

Section 1 — 20(1) of the Juvenile Court Act provides that the parents of a minor who is the subject of proceedings under the Act have the right to be represented by counsel and to have the public defender or other counsel as the case may require appointed to represent them, if they are financially unable to employ counsel. (Ill. Rev. Stat. 1977, ch. 37, par. 701 — 20(1).) Implicit within the right to counsel is that such representation be effective. (Powell v. Alabama (1932), 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 155.) An individual’s right to effective assistance of counsel entitles him to the undivided loyalty of his attorney. (In re Lackey (1979), 71 Ill. App. 3d 705, 390 N.E.2d 519, aff'd sub nom. People v. Lackey (1980), 79 Ill. 2d 466, 405 N.E.2d 748.) In criminal cases co-defendants have a right to separate counsel if their positions are antagonistic. (People v. Ware (1968), 39 Ill. 2d 66, 233 N.E.2d 421.) Similarly, the statutory right to counsel in juvenile proceedings is violated when one attorney is appointed to represent parties with conflicting interests. See People v. Lackey (1980), 79 Ill. 2d 466, 405 N.E.2d 748.

When an issue is raised as to whether a single attorney can effectively represent two defendants, the crucial determination is whether there is a conflict, since absent such conflict there is no threat to a defendant’s right to the assistance of separate counsel. (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42,100 S. Ct. 64.) Further, our supreme court has stated that when counsel or either of defendants before trial calls the court’s attention to the possible antagonistic or conflicting positions of the two defendants and requests that separate counsel be appointed, the trial court should appoint separate counsel or at least should conduct a hearing as to the effect of the alleged conflict. (People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227.) Applying these fundamental precepts, we consider whether appellant’s right to effective counsel was violated by the appointment of the public defender to represent him, keeping in mind that instances involving appointed counsel rather than retained counsel demand closer scrutiny for conflicting interests. People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441; Berland.

It is undisputed in this case that a conflict of interest existed between appellant and the mother of the minor in all proceedings prior to and subsequent to the August 1, 1978, adjudicatory hearing, necessitating the assistant public defender, counsel for the mother, to decline on at least two occasions to also represent appellant. Additionally, the petition of wardship sets forth the antagonistic positions of appellant and the mother, as its allegations recite that each party accused the other of being the cause of the minor’s injuries. However, the State contends that appellant’s willingness to make the challenged admission at the August 1, 1978, hearing indicates that no conflict existed between appellant and the mother on that date. Therefore, the State maintains that appointing the mother’s counsel, the assistant public defender, to represent appellant for purposes of entering his admission and stipulating to the facts of the petition was not error.

Central to a determination of this issue is the validity of appellant’s admission, for it was the court’s acceptance of the voluntariness of appellant’s admission which prompted the court to appoint the assistant public defender as his counsel. To be valid, an admission in a Juvenile Court Act proceeding must be intelligently and voluntarily made; that is, it must be apparent from the record that the party making the admission was aware of the consequences of his admission. (See In re Beasley (1977), 66 Ill. 2d 385, 362 N.E.2d 1024, cert. denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734.) Thus, for the admission of a parent to be valid in the adjudicatory phase of a neglect proceeding, it must be apparent from the record that the parent making the admission understood the consequences of his admission — that a finding of neglect gives the court jurisdiction of the minor who then becomes subject to the dispositional powers of the court. In re Moore (1980), 87 Ill. App. 3d 1117, 409 N.E.2d 435.

The record in the instant case is completely devoid of any indication that appellant understood the consequences of his admission. As appellant notes, the trial court failed to point out to appellant the consequences of such an action, nor did the assistant public defender do so. Although appellant did respond affirmatively to the court’s inquiry as to whether he agreed to the appointment of a guardian for his son and to whether he understood that placement would be with the child’s aunt, his response does not indicate that he understood the consequences of his admission, as the petition for adjudication also failed to apprise the appellant of the possibility of losing any of his parental rights. The petition only requested “temporary custody” of Marvin and “other appropriate relief.” Accordingly, we believe that the record does not demonstrate the appellant’s admission was intelligently or voluntarily made and that he understood the consequences of his admission.

Because appellant’s admission was not knowingly and intelligently made, the admission standing alone was insufficient to establish that the conflict of which the court had been well aware no longer existed. As the trial court without further inquiry rested its determination that no conflict existed between the parties solely on the admission, we agree with appellant’s contention that under the facts of this case the appointment of one counsel to represent appellant and the mother of the minor at the August 1,1978, adjudicatory hearing was erroneous.

However, this determination does not necessarily require the reversal of the trial court’s neglect finding, for a trial court’s determination in a child neglect case will not be disturbed unless there has been an abuse of discretion or the judgment is against the manifest weight of the evidence. (In re Stilley (1977), 66 Ill. 2d 515, 363 N.E.2d 820.) Furthermore, in cases involving custody of children an even broader discretion will be accorded the trial court than in any ordinary appeal to which the familiar manifest weight principle is applied. In re Martin (1975), 31 Ill. App. 3d 288, 333 N.E.2d 711.

Under the Juvenile Court Act a child is neglected if his or her “environment is injurious to his welfare ” * (Ill. Rev. Stat. 1977, ch. 37, par. 702—4(1)(b).) Generally, “neglect” is the failure to exercise the care that circumstances justly demand and it embraces wilful as well as unintentional disregard of parental duty. (In re Stilley.) Neglect must be proved by a preponderance of the evidence (Ill. Rev. Stat. 1977, ch. 37, par. 704—6; In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872), but physical abuse alone will support a finding of neglect. (In re Jackson (1980), 81 Ill. App. 3d 136, 400 N.E.2d 1087.) The sole admission of the custodial parent as to the allegations of the neglect petition may be sufficient to sustain a finding of neglect by the trial court. See In re Wheat (1979), 68 Ill. App. 3d 471, 386 N.E.2d 278.

In this case the trial court’s finding of neglect was based not only on the stipulation of facts entered into by appellant, but also upon that entered into by the minor’s mother, the custodial parent. Her stipulation alone is sufficient to support the finding of neglect by the court and its adjudication of wardship. Furthermore, as the issue at the adjudicatory hearing was whether Marvin was neglected and not the fitness of his parents to care for him (Ill. Rev. Stat. 1977, ch. 37, par. 704 — 6), we do not find the appointment of the public defender to represent him so prejudicial within the context of the adjudicatory hearing as to warrant reversal of the neglect finding we have determined to be supported by the evidence.

Appellant next asserts that the trial court improperly denied his section 72 motion requesting that his admission and stipulation of facts be withdrawn and that the court’s finding of neglect at the August 1, 1978, adjudicatory hearing be vacated. (Ill. Rev. Stat. 1979, ch. 110, par. 72.) The motion again asserted as grounds for the vacation of the neglect finding the impropriety of appointing the mother’s attorney, the public defender, to represent him for purposes of entering the stipulation. This motion was filed on March 5, 1979, seven months after the entry of the court’s August 1, 1978, adjudicatory order and prior to the April 19, 1979, dispositional hearing.

Section 72 provides a procedure by which final orders and judgments may be vacated or modified more than 30 days from their entry. (Ill. Rev. Stat. 1979, ch. 110, par. 72.) An order of the trial court which leaves a cause still pending and undecided is not a final order. (Oak Brook Bank v. Citation Cycle Co. (1977), 45 Ill. App. 3d 1053, 360 N.E.2d 458.) Before an order can be deemed final it must be dispositive of the issues and rights of the litigants. (La Vida, Inc. v. Robbins (1961), 33 Ill. App. 2d 243, 178 N.E.2d 412.) An adjudication of wardship is not a final order for purposes of appeal (In re Lee (1979), 73 Ill. App. 3d 449, 392 N.E.2d 304), although Supreme Court Rule 662(a) allows an appeal from an adjudication of wardship in the event that an order of disposition has not been entered within 90 days of the adjudication of wardship (Ill. Rev. Stat. 1977, ch. 110A, par. 622(a)).

The August 1, 1978, order finding neglect and adjudicating wardship was not a final order, and therefore a section 72 motion was an improper vehicle to challenge it. However, as an interlocutory order may be vacated or modified at any time before final judgment (Leopold v. Levin (1970), 45 Ill. 2d 434, 259 N.E.2d 250), and as the trial court denied appellant’s motion on the merits, we will reach the merits of the court’s denial of appellant’s motion despite its section 72 label.

We have already determined that the appointment of the public defender at the adjudicatory hearing to represent appellant was erroneous. Therefore, the trial court should have granted that portion of appellant’s motion seeking to withdraw the stipulation of facts entered by the public defender. However, as we have also previously concluded that the court’s finding of neglect was not against the manifest weight of the evidence and that the appointment of the public defender to represent him was not so prejudicial to warrant reversal of that finding, the trial court properly denied that portion of appellant’s motion petitioning the court to vacate the finding of neglect.

We next consider whether the trial court’s improper denial of that portion of appellant’s motion seeking to withdraw his admission and his stipulation of facts requires a new dispositional hearing. After adjudging a minor a ward of the court, the court proceeds to the dispositional hearing and hears evidence on the question of the placement best serving the interests of the minor and the public. (Ill. Rev. Stat. 1979, ch. 37, par. 705 — 1.) If the court finds that the parents of a minor adjudged a ward of the court are unfit or unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor and it is in the best interests of the minor to take him from the custody of his parents, the court may do so. Ill. Rev. Stat. 1979, ch. 37, par. 705 — 7.

At the dispositional proceeding the trial court conducted a full hearing on the issue of the best placement for the minor. The State offered evidence showing that the social worker assigned to the case, and a psychiatrist and a psychologist who conducted case studies of the parents, all concluded that neither appellant nor the minor’s mother was capable of functioning as a responsible parent. From our review of the record, appellant, represented by independent counsel during the entire dispositional hearing, neither rebutted nor discredited this evidence. We note further that the dispositional order did not terminate either parent’s parental rights but rather vested legal custody of the minor in the guardian. Although evidence may indicate that a parent is not fit to have custody of his child, it does not automatically follow that the parent is not fit to be the child’s legal parent. (In re Hurley (1976), 44 Ill. App. 3d 260, 357 N.E.2d 815.) As such we cannot say, even absent appellant’s stipulation, that the trial court’s finding of unfitness and its appointment of a guardian with the right to place the minor was against the manifest weight of the evidence; and we note that appellant fails to so argue.

Appellant also asserts that the trial court improperly denied his motion for a “new trial” made on April 19, 1979, just shortly before the dispositional hearing was conducted. Again appellant asserted he had been denied effective representation of counsel at the August 1, 1978, adjudicatory hearing. We conclude that appellant’s motion for a new adjudicatory hearing was properly denied, however, for those reasons previously discussed relative to the denial of his motion to vacate the finding of neglect.

Finally, appellant asserts that the trial court was without jurisdiction to enter its order of June 18, 1980. After appellant had filed his appeal from the trial court’s April 19, 1979, order, the minor’s mother filed a supplemental petition in the trial court. The petition prayed the court to vacate its previous guardianship order and return the minor to her. After overruling appellant’s objection to the jurisdiction of the court to entertain the petition, the court conducted a hearing on the matter. The court entered an order on June 18,1980, finding the mother fit and returning the minor to her. Appellant contends that his notice of appeal from the April 19,1979, order divested the court of jurisdiction to enter the June 18,1980, order.

Generally, once the jurisdiction of the appellate court attaches by reason of the filing of a notice of appeal, the trial court is without jurisdiction to take any further action insofar as the notice affects the subject that the trial court might seek to act upon. (Cygnar v. Martin-Trigona (1975), 26 Ill. App. 3d 291, 293, 325 N.E.2d 76, 78.) Thus, once an appeal has been duly filed, the trial court is restrained from entering any order which would change or modify the judgment or its scope, and from entering any order which would have the effect of interfering with the review of the judgment. Dunn v. Dunn (1979), 71 Ill. App. 3d 649, 390 N.E.2d 136.

However, we also recognize that when a parent has been deprived of the custody of his child at a time when the child is declared neglected, the court’s jurisdiction is a continuing one. (Oeth v. Erwin (1955), 6 Ill. App. 2d 18, 126 N.E.2d 526.) Furthermore, unless it expressly so provides, the dispositional order does not operate to close proceedings on the petition and it is always subject to modification by the court until a final closing or discharge of the proceedings pursuant to section 5 — 11 of the Juvenile Court Act. (Ill. Rev. Stat. 1977, ch. 37, pars. 705—2(3), 705—11.) That section provides that proceedings are terminated (1) automatically when the minor attains 21. years of age, or (2) when the court orders the wardship terminated and the proceedings discharged when it is in the best interests of the minor. (Ill Rev. Stat. 1979, ch. 37, pars. 705 — 11(1), 705 — 11(2).) Neither event occurred here; therefore, the proceedings were not terminated by the entry of the April 19,1979, dispositional order. Additionally, a parent who has lost custody may later petition the court for restoration of custody. (Ill. Rev. Stat. 1977, ch. 37, par. 705 — 8.) The scope of the challenged June 18, 1980, order was limited to a finding of the mother’s fitness and the placement of the minor with her. The order did not disturb the court’s previous findings of neglect or appellant’s unfitness, nor terminate the guardianship or wardship.

The question of the trial court’s jurisdiction to enter its April 1, 1980, order finding the mother fit is resolved by Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 394 N.E.2d 380. There our supreme court stated:

“In any event, the notice of appeal must conform to the requirements of our Rule 303(c)(2) in that it must ‘specify the judgment or part thereof appealed from.’ When a notice of appeal is perfected the trial court loses jurisdiction as to the judgment or part thereof from which the appeal is taken and, as to such matter, the case thereafter proceeds in the appellate court not as a new case but as a continuation of the case in the trial court.
« « «
When an appeal is taken from a specified judgment only, or from a part of a specified judgment, the court of review acquires no jurisdiction to review other judgments or parts thereof not so specified or not fairly to be inferred from the notice as intended to be presented for review on the appeal. If from the notice of appeal itself and the subsequent proceedings it appears that the appeal was intended, and the appellant and the appellee so understood, to have been taken from an unspecified judgment or part thereof, the notice of appeal may be construed as bringing up for review the unspecified part of the order or judgment.” 76 Ill. 2d 427, 433-34.

In this case appellant’s notice of appeal from the April 19,1979, order specified as the judgment appealed from: “Guilty of Child Abuse, on a finding of neglect pursuant to stipulation of fact and admission per Chapter 37, Section 702 — 4(1) (b) and adjudication of wardship pursuant to stipulation of fact and admission.” Appellant’s briefs to the court specified as point for reversal (1) the appointment of a single counsel to represent him and the mother of the minor, (2) the acceptance of appellant’s admission, (3) the failure to strike his admission and stipulation, and the failure to vacate the neglect finding, and (4) the failure to grant a new adjudicatory hearing. A consideration of appellant’s notice of appeal and the proceedings in this court establishes his first appeal was taken from the court’s finding of neglect, his unfitness, the adjudication of wardship and guardianship. It further establishes.that appellant did not appeal nor intend to appeal from that portion of the April 19,1979, order finding the mother unfit. Therefore, the trial court was not divested of its continuing jurisdiction to consider anew the issues of the mother’s fitness and that placement which would be in the minor’s best interest. Burtell.

Finally, appellant asserts that if the court had the jurisdiction to enter its April 1, 1980, order, it abused its discretion in doing so. We disagree. The court had jurisdiction in the matter and we believe was duty bound to exercise it here to facilitate the stated purpose of the Juvenile Court Act — “to secure for each minor subject hereto such care and guidance, preferably in his own home, as will serve the moral, emotional, mental, and physical welfare of the minor and the best interests of the community ° ° e.” Ill. Rev. Stat. 1979, ch. 37, par. 701 — 2.

Accordingly, for the reasons cited herein, we affirm the April 19, 1979, and June 18,1980, orders of the trial court.

Orders affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.

       The petition included in the record in No. 79-2028 was amended to show Burton as the father; the petition included in the record in No. 80-2070 was amended to show Belton as the father. No one disputes that Marvin Burton and Marvin Belton are one and the same person — appellant.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES R. BLAIR, Defendant-Appellant.
    First District (5th Division)
    No. 80-1066
    Opinion filed December 28, 1981.

      Ralph Ruebner and Gordon Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, and David K. King, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant James R. Blair was charged by information with burglary. (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1.) Following a jury trial, defendant was found guilty and was sentenced to serve an “extended term” sentence of 12 years in the Illinois Department of Corrections. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2.) On appeal, he contends that: (1) it was error for the State to inform the court prior to any proceedings that there had been plea negotiations; (2) the trial court erred in denying his motion to quash arrest and suppress evidence or, alternatively, in denying a continuance to allow counsel to obtain a rebuttal witness; (3) the court erred in denying defendant’s motion for treatment under the drug abuse program; (4) the trial court erred in denying defendant’s motion in limine which would have excluded evidence of four prior burglary convictions; (5) the trial court erred in not responding to the jury’s written inquiry on the instructions; (6) the trial court erred in permitting testimony that defendant was the subject of an intensive surveillance effort by various “tactical units,” for this testimony suggested to the jury that defendant was a well-known burglar or criminal; and (7) the court erred in imposing an extended-term sentence.

Defendant has withdrawn the final issue in his reply brief and therefore it is not considered.

On June 13,1979, defendant was charged with burglary, alleging that on May 26, 1979, he entered an office at 30 North Michigan Avenue in Chicago, the property of Martin Berzon, with intent to commit theft therein. At a pretrial hearing on December 12, 1979, the State informed the court that there had been discussions off the record, and out of the presence of the court, regarding a possible plea offer, and that an offer was refused by the defendant and therefore the State would make no further offers.

Motion to Quash Arrest

At the above hearing, defendant presented a motion to quash arrest and suppress evidence. Police officers Stubbs and Saternus testified. On Saturday, May 26, 1979, at 1:30 p.m., defendant was observed in an area of downtown Chicago and was put under surveillance by five or six members of the plain-clothed tactical unit who were at all times linked by radio communication. Officer Saternus stated that he had arrested defendant for burglary and for deceptive practice in the past. Officer Stubbs testified that he had arrested defendant before for office burglaries.

While under surveillance defendant was observed going into a hardware store on North Halsted Street. A clerk informed the officers that defendant had purchased a screwdriver there. Defendant then walked to Wacker Drive, reaching the Board of Education Building, which he entered briefly and then exited. He continued his walk eastward to Michigan Avenue. At Michigan he walked a few feet south to the first building, stopped, peered into the entrance, walked back north a bit, walked back to the doorway, looked in again, and then continued southbound on Michigan Avenue. He did a “similar thing” at another building at Lake Street. He then walked to the building in question, at 30 North Michigan, looked into the building, stood there a while, and entered at about 2 p.m. According to Officer Stubbs, the offices in this building are usually closed on Saturdays. The officers then set up surveillance on the Michigan Avenue entrance to the building and waited. At about 2:20 p.m. defendant came out of the building. He had a large overcoat over one arm which partially covered a portable TV. In the other hand he was carrying a typewriter. According to Officer Stubbs, on weekends the downtown part of Chicago is a “high crime area” for burglaries. Officer Saternus placed defendant under arrest, saying “Hello James. You are under arrest.” Officer Stubbs searched defendant, found a screwdriver in his coat pocket, and found a receipt bearing the name Martin Berzon in the overcoat.

Officer Stubbs then entered the building’s lobby, found the name Martin Berzon on the directory, and then went to the corresponding office located on the 19th floor. On approaching the office in question, he observed the door was ajar and noticed particles of paint and plaster on the floor. There were pry marks on the wood and lock area. The office was in disarray. According to Stubbs, there had been a man on duty in the lobby. He did not know his position but believed him to have been wearing an elevator starter’s uniform. This man was not produced to testify at the hearing.

During the hearing Officer Stubbs testified that another entrance to the building, on Washington Street, is normally closed on Saturday and is locked. On cross-examination Officer Stubbs testified:

“Q. Isn’t it a fact that on weekends the entrance into the building is on Washington and not on Michigan?
A. No. It’s on Michigan.”

Officer Saternus testified likewise on cross-examination. Later, defense counsel requested a continuance to subpoena the manager of the building in question as a rebuttal witness to testify that the customary practice in that building is such that when the building is closed, the entrance used is the Washington entrance, not the Michigan entrance. Counsel stated that he had personal knowledge of the building. The trial court denied defendant’s request for a continuance and, after additional argument, denied the motion to quash the arrest.

Drug Abuse Proceedings

Defendant filed a petition to be examined or treated under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1979, ch. 91½, par. 120.1 etseq.). The cause was continued for a Treatment Alternative to Street Crimes (T.A.S.C.) examination of defendant. The trial judge, however, stated that he did not believe defendant was a good candidate whether or not he was eligible. The court, however, set the matter for a hearing at which the prosecutor contended that since defendant had two prior convictions for Class 2 felonies, he was not eligible for the drug abuse program. A representative of T.A.S.C. testified that they did not have consent from the parole board for defendant’s treatment in lieu of prosecution. The court denied the motion for treatment under the drug abuse statute.

Motion in Limine

After jury selection, the defense made a motion in limine to bar evidence of any prior convictions for impeachment of defendant at trial. The prosecutor then had nine certified copies of convictions, all for burglary. The motion was denied. A motion for mistrial was also denied.

Trial

Officer Saternus testified for the State. At 1:30 p.m. on the date in question, while riding with a partner, he saw defendant walking. He called for some additional tactical units and “placed the subject under surveillance.” Other responding “units” who were also “in on the surveillance” maintained radio contact by use of hand held “walkie-talkies.”

Officer Saternus then described defendant’s movements in detail, tracing his travel across downtown Chicago and leading into the building on Michigan Avenue. Officer Saternus was positioned in front of the building. After 20 minutes defendant exited carrying the coat, typewriter and television. Saternus approached defendant and placed him under arrest.

Officer Stubbs also testified. Responding to a radio broadcast from Officer Saternus, he followed defendant on foot. He testified that he knew defendant and that his name was James Blair. Officer Stubbs described at length the surveillance of defendant, recounting his travels from Halsted Street, where defendant entered the hardware store, and then east to Michigan Avenue. He testified regarding a photograph of the office and the damage to the door. Based on his experience, a screwdriver could be used to open the door. While searching defendant, he uncovered a tube of toothpaste, a toothbrush and stamps, and a wrist radio, in addition to the coat, television and typewriter.

Witness Darryl Mittleman, an employee of the hardware store on Halsted Street, stated that on the subject date an officer questioned him about his selling a screwdriver to a customer. Mittleman identified a trial exhibit as the same make and model screwdriver sold at his store.

Martin Berzon, the complainant, testified that a television, a portable electric typewriter, a corduroy coat, and a wrist radio were missing from his office on Monday morning and that he had not given defendant authority to enter his office. When he returned to the office Monday, he found it in complete disarray but there was nothing unusual about the door jamb or door.

Just prior to the close of trial, and outside the presence of the jury, defendant testified that he would choose not to testify because the prosecutor had indicated his intention to impeach his credibility with eight certified copies of prior felony convictions. The State then offered to use only four. Defendant responded that he still would not testify due to these four prior convictions.

The jury, over defendant’s objection, was instructed regarding an inference arising from the unexplained possession of recently stolen property. (Illinois Pattern Jury Instructions, Criminal, No. 13.21 (1968)) (hereinafter IPI Criminal.) While deliberating, the jury asked in a note to the court whether there was a conflict between the definition of burglary and this instruction. The court wrote the jury: “You have your instructions. Read them and continue to deliberate.”

Additional pertinent facts are incorporated into the opinion below.

Opinion

Defendant contends that it was error for the prosecutor to “gratuitously” inform the trial court, prior to any proceedings, that there had been plea discussions off the record, that an offer had been refused, and based on that, the State would make no further offers. Defendant’s contention is that this violated Supreme Court Rule 402(f) (73 Ill. 2d R. 402(f)) which provides that if plea discussions do not result in a plea of guilty, such plea discussions shall not be admissible against the defendant in any proceedings.

The State argues that defendant has waived the 402(f) issue by failure to object and by failure to include the issue in his post-trial motion.

After reviewing the entire record, it is apparent that defendant failed to object to the prosecutor’s remarks at the time they were made and at each stage of the proceedings. Normally, under these circumstances the defendant has waived any possible error. (See generally People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838; People v. Benniefield (1980), 88 Ill. App. 3d 150, 410 N.E.2d 455.) Furthermore, the record discloses that defendant failed to raise the 402(f) issue in his motion for a new trial. Generally, such failure constitutes waiver of the issue for purposes of appellate review. People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227; People v. Wilson (1981), 93 Ill. App. 3d 161, 416 N.E.2d 1169.

Defendant has not claimed plain error, nor does the record indicate that defendant’s plea negotiation was in any way introduced before the jury during the proceedings. Accordingly, we find that defendant has waived the 402(f) issue for review.

Defendant next contends that the trial court erred in denying his motion to quash arrest and suppress evidence. Defendant presents the question of whether there was probable cause to justify his arrest. He argues that the circumstances leading to his arrest in their totality might be sufficient to raise a “strong suspicion” of burglary, but were not sufficient to make it a certainty, a clear conclusion, that a crime had been committed. Defendant concludes that, at best, an investigatory stop or temporary detention was all that was warranted under the circumstances without some corroboration from within the building that a crime had occurred.

It has been frequently held that probable cause to arrest exists where the circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing an offense had been committed, and that the person arrested committed the offense. (See, e.g., People v. Robinson (1976), 62 Ill. 2d 273, 342 N.E.2d 356; People v. Borges (1980), 88 Ill. App. 3d 912, 410 N.E.2d 1076.) Existence of probable cause depends upon the totality of the circumstances as viewed under practical consideration of everyday life from the point of view of reasonably prudent persons. (People v. Green (1980), 88 Ill. App. 3d 929, 410 N.E.2d 1003.) As such, the existence of probable cause may be founded on evidence which would not be admissible at trial and which need not be sufficient to establish guilt beyond a reasonable doubt. (People v. Blitz (1977), 68 Ill. 2d 287, 369 N.E.2d 1238, cert. denied (1978), 435 U.S. 974, 56 L. Ed. 2d 68, 98 S. Ct. 1622.) A trial court’s finding of probable cause will not be disturbed on appeal unless manifestly erroneous. People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280.

Applying these principles, we believe that the facts recited above, considered in their totality, were sufficient to warrant a person of reasonable caution in believing that the crime of burglary had been committed and that defendant had committed it. We conclude, therefore, that probable cause existed and the arrest of defendant was legally proper.

Defendant has also argued that the probable cause ruling should be reversed because the trial court erred in denying his motion for a continuance to obtain a rebuttal witness at the suppression hearing. This issue was not raised by defendant in his post-trial motion and accordingly is deemed waived. People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227; People v. Wilson (1981), 93 Ill. App. 3d 161, 416 N.E.2d 1169.

The next issue before us on appeal is whether the trial court erred in denying defendant eligibility for treatment under the drug abuse program pursuant to the Dangerous Drug Abuse Act. Ill. Rev. Stat. 1979, ch. 91½, par. 120.1 et seq.

The Dangerous Drug Abuse Act vests discretion in the trial court to determine if a defendant will be offered treatment in lieu of prosecution. Generally, the record must show that the trial court has, in fact, exercised its discretion where the defendant is eligible for treatment under the Act. (People v. Morgan (1977), 50 Ill. App. 3d 962, 365 N.E.2d 1362.) The defendant contends that the trial court erred in denying his petition for drug abuse treatment because such denial was erroneously based upon a comment made by the prosecutor to the effect that defendant was not eligible for treatment due to two prior felony convictions. This contention is without merit.

The eligibility requirements for treatment under the drug abuse program are set forth in section 8 of the Dangerous Drug Abuse Act. (Ill. Rev. Stat. 1979, ch. 91%, par. 120.8.) Section 8 provides in pertinent part as follows:

“An addict charged with or convicted of a crime is eligible to elect treatment under the supervision of a licensed program designated by the Commission instead of prosecution or probation, as the case may be, unless * * * (e) the addict is on probation or parole and the appropriate parole or probation authority does not consent to that election 0 °

In People v. Phillips (1977), 66 Ill. 2d 412, 362 N.E.2d 1037, our supreme court held that under this provision, an addicted defendant must affirmatively show that he has obtained the proper consent of his probation or parole officer before the court has the authority to place him in the Act’s treatment program.

In the instant case defendant was at all relevant times on parole. From the record it is clear that defendant failed to affirmatively show that he obtained the consent of the appropriate parole authority for treatment under the Act. Accordingly, defendant was ineligible for treatment. In view of the foregoing, defendant’s request for treatment under the Act was properly denied.

Defendant next contends that the trial court erred in ruling that the State would be permitted to use four prior burglary convictions to impeach him at trial. At the commencement of the trial defendant presented a motion in limine which sought to exclude evidence of any prior conviction which the prosecution might offer for purposes of impeachment of the defendant at trial. At that time the State represented that it had nine certified copies of convictions, all for burglary. The motion was denied. Later, as noted in the above recitation of the facts, the prosecution offered to reduce the number of prior convictions to four.

On appeal, we are asked to consider the propriety of the use of these four prior burglary convictions as impeachment evidence at defendant’s trial for the same crime. It is defendant’s contention that because of the similarity of the four prior convictions and the instant burglary charge, that he could not have received a fair trial. In response, the State argues that such convictions, relating to crimes of dishonesty, were properly admissible for impeachment purposes since their probative value outweighed the dangers of unfair prejudice to the defendant.

Generally, crimes punishable by imprisonment in excess of one year or involving dishonesty may be used for impeachment purposes if the trial court determines that the probative value of the prior convictions is not substantially outweighed by the danger of unfair prejudice. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695; People v. Smith (1980), 88 Ill. App. 3d 897, 410 N.E.2d 973.) In determining whether a conviction’s prejudicial effect substantially outweighs its probative value, the trial court must consider four factors set forth in Montgomery: (1) the nature of the crime, i.e., whether the prior conviction is veracity-related; (2) the nearness or remoteness in time of the conviction to the present trial, as it relates to the degree of defendant’s rehabilitation; (3) the subsequent career of the defendant, as it also relates to the degree of defendant’s rehabilitation; and (4) the similarity of the prior conviction to the present charge because such similarity often invites an improper inference of guilt rather than directing attention to the defendant’s credibility. See Gordon v. United States (D.C. Cir. 1967), 383 F.2d 936, cert. denied (1968), 390 U.S. 1029, 20 L. Ed. 2d 287, 88 S. Ct. 1421.

While the four convictions are for the same type of crime as that charged in the instant case, namely burglary, it is not mandatory that they be disallowed. (See, e.g., People v. Dailey (1973), 15 Ill. App. 3d 214, 304 N.E.2d 156.) The fourth Montgomery factor has not been considered by Illinois courts to be conclusively prejudicial and we have frequently allowed impeachment by use of same or similar crimes. (See, e.g., People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563; People v. Hall (1981), 95 Ill. App. 3d 1057, 420 N.E.2d 1153.) It has also been consistently held in our State that a prior burglary conviction is probative of defendant’s credibility and therefore proper impeachment evidence. See, e.g., People v. Washington (1973), 55 Ill. 2d 521, 304 N.E.2d 276; People v. McNeal (1980), 88 Ill. App. 3d 20, 410 N.E.2d 480.

We have considered the foregoing in relation to the four burglary convictions sought to be used in the instant case and find that their probative value, considering the first three Montgomery factors, outweighs the risk of prejudice that is likely to attend their introduction due to their similarity to the instant crime. Defendant has not raised the issue of prejudice due to the number of convictions sought to be introduced in the instant case. We note, however, that multiple convictions for same or similar crimes have frequently been allowed for impeachment purposes by Illinois courts. See People v. Hall; but cf. People v. McKibbins (1981), 100 Ill. App. 3d 787, 427 N.E.2d 238, where introduction of 20 prior theft convictions was held to be reversible error.

For the above reasons, we find that the circuit court did not err in denying the motion in limine which would have barred evidence of defendant’s prior convictions for burglary.

Next, defendant contends that the court committed reversible error by failing to answer a question posed by the jury regarding two instructions given in the case. The first instruction touched by the jury’s question was IPI Criminal No. 13.21. This instruction reads as follows:

“If you find that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by burglary.”

The above instruction appeared on page 2 of the instructions to the jury. Page 3 of the instructions contained IPI Criminal No. 14.06, the burglary issues instruction. This instruction enumerated the several propositions the State must prove in order to sustain the charge of burglary, and provided that if any of the listed propositions has not been proved beyond a reasonable doubt, the jury should find the defendant not guilty.

After several hours of deliberation, the jurors submitted a written request to the judge as follows:

“Does the definition of burglary on page 2 conflict with the definition of burglary on page 3? Will each of these definitions stand alone as complete definitions of the charge of burglary? In other words if we find that the State has proved beyond a reasonable doubt the instructions on page 3, is that enough to satisfy the propositions on page 2?”

To this, the judge replied in writing:

“You have your instructions. Read them and continue to deliberate.”

Defendant maintains that, in essence, the jury’s questions showed that they were in doubt as to whether the instruction on the permissive inference from exclusive possession of recently stolen property could, by itself, sustain the charge of burglary. Since, as defendant argues, such an inference may only be permitted where there is other corroborating evidence of burglary (People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151), he concludes that the court was duty bound to clarify these instructions, at least by replying in the negative to the jury’s questions. (People v. Land (1975), 34 Ill. App. 3d 548, 340 N.E.2d 44; see also People v. Kucala (1972), 7 Ill. App. 3d 1029, 288 N.E.2d 622; People v. Harmon (1968), 104 Ill. App. 2d 294, 244 N.E.2d 358.) We do not find that any error was committed.

The Land decision and its precursors are distinguishable from the instant case. In Land the trial court plainly refused to permit the jury even to inform it as to what portion of the instructions were presenting problems. This court found such conduct by the trial judge to be reversible error, relying upon the general principle expounded earlier by this court in Harmon and Kucala. In these cases we stated that where jurors have made explicit what points in instructions are troubling them, the trial judge should attempt to clarify them with concrete precision. Yet, in these cases, we found that there was some basis for the jury’s confusion with respect to the instructions, either arising from the facts (Kucala), or from instructions which did not fully state the law (Harmon). We do not find such bases present in the record before us.

In the instant case the jury was given, in addition to IPI Criminal No. 13.21 and, among other instructions, the following: IPI Criminal No. 1.01 which told the jurors that they were not to single out particular instructions, that they were to act as the judges of the facts, and that they should consider all the evidence in the light of their own observations and experience; IPI Criminal No. 14.06, which lists the elements of burglary and requires acquittal if any element is not proved beyond a reasonable doubt; IPI Criminal No. 1.02, which stated that jurors were the sole judges of credibility; and IPI Criminal No. 3.02, which described the application of circumstantial evidence. We feel that these instructions fully and adequately instructed the jury on the law as it related to the instant set of facts. The instructions were in clear and common language which the jury could understand, and adequately informed the jury of the burden of proof needed to convict the defendant of the crime of burglary. In Housby a similar combination of instructions, taken together, was held to have adequately informed the jury that it had the option of disregarding the inference raised by IPI Criminal No. 13.21, if it so chose. (84 Ill. 2d 415, 434, 420 N.E.2d 151, 160.) Under these circumstances the defendant was not prejudiced by the trial court’s failure to further instruct the jury. (See People v. Tostado (1981), 92 Ill. App. 3d 837, 416 N.E.2d 353.) Moreover, we reject the defendant’s contention that the compound question posed by the jury here could have been clarified by a single negative response. The trial court’s direction that the jury follow the instructions should have dispelled any confusion they may have had concerning the elements necessary to sustain a charge of burglary. (See People v. Jedlicka (1980), 84 Ill. App. 3d 483, 405 N.E.2d 844.) Accordingly, we find no error in the trial judge’s response to the jury’s inquiry.

Finally, defendant contends that the testimony of Officers Saternus and Stubbs regarding the nature of their surveillance of defendant improperly suggested to the jury that the defendant was a well-known burglar in the eyes of the police. (People v. McMillan (1970), 130 Ill. App. 2d 633, 264 N.E.2d 554.) The State contends that the defendant has waived this issue and further argues that any prejudicial effect of this testimony was minimal.

Defendant neither objected to the remarks at the time they were made, nor set them forth as error in his written motion for a new trial. Defendant, however, claims that the remarks constitute plain error and may therefore be considered.

Based upon our review of the record, we do not conclude that defendant was deprived of a fair trial or was unduly prejudiced by the police officers’ testimony. Nor do we find that the evidence herein was closely balanced so as to require departure from the general rule that issues not properly preserved for review are waived. (People v. Price (1979), 76 Ill. App. 3d 613, 394 N.E.2d 1256.) Accordingly, we conclude that defendant has waived this issue for review.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J., and WILSON, J., concur.

       Subsequent to the events of this case, the Illinois Supreme Court Committee on Pattern Jury Instructions promulgated its revised criminal instructions. (See Illinois Pattern Jury Instructions, Criminal (2d ed. 1981),) IPI Criminal No. 13.21 has therein been amended to include the following paragraph:
      “You never are required to make this inference. It is for the jury to determine whether the inference should be drawn.” (IPI Criminal 2d No. 13.21.)
      The revised version contains two additional paragraphs which further qualify the inference to be drawn from exclusive possession of recently stolen property. The Committee note accompanying this instruction recommends that no instruction be given on this subject, either in theft cases, or elsewhere. The Committee note recognizes, however, that IPI Criminal No. 13.21 has been approved by numerous Illinois decisions. (See People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) In the instant case we feel that the criteria set forth in Housby have been satisfied and therefore the trial court properly submitted this instruction to the jury.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD BAINTER, Defendant-Appellant.
    Third District
    No. 81-207
    Opinion filed December 31, 1981.

      Robert Agostinelli and Stephen Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Thomas J. Homer, State’s Attorney, of Lewistown (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Richard Bainter, was convicted of theft of property having a value in excess of $150 following a jury trial in the circuit court of Fulton County. On appeal, he raises the following issues: (1) whether his attorney labored under a per se conflict of interest where defense counsel had previously represented the State’s chief witness in a prosecution for the same offense; (2) whether the defendant effectively waived any such conflict; (3) whether the allegedly improper comments by the prosecutor during closing argument denied the defendant a fair trial; and (4) whether the trial court committed reversible error in allowing the prosecutor to elicit testimony during direct examination from State’s witness John Ramey regarding Ramey’s conviction of burglary for his participation in the offense with which the defendant was charged, and whether the prosecutor enhanced this alleged error during closing argument by suggesting that the jurors could consider Ramey’s guilty plea in their deliberations on the defendant’s guilt or innocence.

A resolution of these issues requires only a brief summation of the factual basis for the defendant’s conviction. On the morning of November 21, 1980, the defendant went hunting with two friends, Jon Stone and John Ramey. As the three friends were riding in Stone’s automobile, the conversation turned to the subject of a young man named Timothy Peters, and the fact that he had some furs. Eventually, the three friends decided to steal the furs. They removed the furs from a freezer located in the Peters’ garage after Ramey pried open the freezer with a screwdriver. Whether the defendant entered the garage to assist with the removal of the furs was a question open to dispute at trial.

Following a removal of the furs from the garage, the three young men took the furs to the defendant’s house and counted them. Later that evening, the furs were taken to the Perardi Fur Company in Farmington, Illinois. All of the furs were sold, with the exception of one fox fur, for a total price of $206. The defendant received one-third of the money. The fox fur, which was not sold, was later returned to Timothy Peters by the defendant, who put the fur in Peters’ truck while the truck was parked at the high school.

The defendant’s retained attorney at trial was William C. Davis. Attorney Davis had previously represented John Ramey, the State’s chief witness at the defendant’s trial, when Ramey pleaded guilty to a charge of burglary arising from the same incident as that giving rise to the defendant’s conviction.

The defendant contends that this dual representation created a per se conflict of interest for his attorney and thus deprived him of his constitutional right to the effective assistance of counsel. He further contends that he did not effect a knowing and intelligent waiver of this alleged conflict of interest.

Preliminarily, we note that the defendant failed to include the conflict of interest issue in his post-trial motion. This omission does not prevent the defendant from raising the issue on appeal, since there was no post-trial review by an independent attorney and defendant’s trial counsel could hardly have been expected to include the issue in a post-trial motion since it is clear that he thought no conflict existed. People v. Arreguin (1981), 92 Ill. App. 3d 899, 416 N.E.2d 402; People v. Mathes (1979), 69 Ill. App. 3d 275, 387 N.E.2d 39.

Following a careful review of the colloquy which occurred immediately prior to jury selection between the defendant and the trial judge concerning the possibility of a conflict of interest on the part of the defendant’s counsel, we determine that the defendant knowingly waived any potential conflict. We make this determination without reaching the merits of the conflict issue and, therefore, withhold judgment on the question of whether a per se conflict or an actual conflict of interest existed.

An accused has the unquestioned privilege to waive his right to counsel free from conflicting interests. (People v. Johnson (1979), 75 Ill. 2d 180, 387 N.E.2d 688; People v. Friedrich (1960), 20 Ill. 2d 240, 169 N.E.2d 752.) The following discussion represents a proper and unequivocal exercise of that privilege by the defendant in this case:

“BY THE COURT: * 6 # Mr. Bainter, did you know that Mr. Davis [the defendant’s retained counsel] represented Mr. Ramey [the People’s witness] ?
BY MR. BAINTER: Yes, sir.
BY THE COURT: And you understand he, of course, is now representing you?
BY MR. BAINTER: Yes, sir.
BY THE COURT: Do you have any problem with the fact that if Mr. Ramey testifies here and Mr. Davis has previously represented him that there could be some conflict of interest present by reason of that fact?
BY MR. BAINTER: No, sir.
BY THE COURT: There is, Mr. Bainter, the possibility that, and I’m speaking in terms of mere possibility. [Sic.] There is always the concern of the court and the reviewing court that because of some prior representation of a co-defendant here that there may be that subconscious element creep into, for example, the cross examination of Mr. Ramey by your attorney where he might not be as thorough as he would otherwise be had he not previously represented Mr. Ramey. Does that cause you any alarm or concern?
BY MR. BAINTER: No, sir.
BY THE COURT: Mr. Davis, do you foresee any conflict of interest with respect to this matter?
BY MR. DAVIS: No, sir, I don’t — not at this time.
BY THE COURT: Mr. Danner [the assistant state’s attorney]?
BY MR. DANNER: You Honor, what I might bring to the Court’s attention is that there, Mr. Davis would be allowed to represent Mr. Bainter in this proceeding, there could be an infringement of the attorney/client privilege with Mr. Ramey — disposing [sic] confidences and things of this nature — which gives me some reason for concern.
BY THE COURT: Mr. Davis?
BY MR. DAVIS: Your Honor, there is always that possibility that things may be brought out in direct that may have, I may have knowledge different in my conversations with him while I represented him, and to that extent I may be able to turn that to my advantage or the vantage [sic] of my present client. At this point I can think of nothing, but during a trial, things are said; sometimes it comes as a surprise to Counsel. The testimony isn’t always as we anticipate.
BY THE COURT: Well, it’s unfortunate that this has to be the problem of the Court, but we will proceed here. 6 *

It is clear from the defendant’s responses that he wanted his retained attorney to continue representing him. He knew that his retained counsel had previously represented State’s witness, John Ramey, and he informed the court that any conflict of interest presented by that fact would not trouble him. In addition, he was not concerned that his attorney might be subconsciously influenced in his cross-examination of Ramey by his prior representation of Ramey.

The defendant’s argument that his waiver of the alleged conflict was inadequate because the trial judge failed to follow the procedure outlined in Federal Rule of Criminal Procedure 11 and espoused in United States v. Alvarez (5th Cir. 1978), 580 F. 2d 1251, and United States v. Garcia (5th Cir. 1975), 517 F. 2d 272, whereby a defendant’s knowing and intelligent waiver of certain constitutional rights by virtue of a guilty plea are manifested in the record, does not persuade. As the defendant admits, Illinois courts have not yet expressly adopted the procedure espoused in Alvarez, Garcia and their progeny. (See also Tigar, Forward: Waiver of Constitutional Rights: Disquiet in the Citadel, 84 Harv. L. Rev. 1, 23-24 (1970).) We find that the trial judge’s questions and admonishments and the defendant’s responses on the conflict issue clearly establish a waiver of any possible conflict. The court properly proceeded with the defendant’s trial.

The defendant next asserts that he was denied a fair trial, because the prosecutor allegedly made improper comments during closing argument. Only one of these comments, an allegedly improper suggestion to the jury that they consider the guilty plea of the defendant’s accomplice, John Ramey, as evidence of the defendant’s guilt, was raised in the defendant’s post-trial motion. The failure of the defendant to raise the other comments in his post-trial motion has waived those issues for purposes of appeal. People v. Gordon (1981), 94 Ill. App. 3d 764, 419 N.E.2d 66; People v. Garza (1981), 92 Ill. App. 3d 723, 415 N.E.2d 1328.

We have examined each of the allegedly improper comments carefully and, while we don’t approve of them and hope they are not repeated by the prosecutor in subsequent cases, we find they do not fall under the plain error exception to the waiver rule. The application of the plain error doctrine should be limited to situations where the alleged errors are grave or where the case is close factually. (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331; People v. Boyd (1980), 81 Ill. App. 3d 259, 401 N.E.2d 304.) The errors complained of in the present case were not grave nor was the case close factually. The defendant’s taped confession was played for the jury, and the defendant was fully implicated by the testimony of his accomplice, John Ramey.

The one allegedly improper prosecutorial comment preserved on appeal by its inclusion in the defendant’s post-trial motion involved the following language:

0 * John Ramey came in and he made a statement today. As you were made aware from the Miranda card, the Defendant or a suspect in a crime has the right not to make a statement. Apparently Mr. Ramey chose to exercise his constitutional right not to make a statement when he was arrested, but you also know that Mr. Ramey, a month or so down the road, made the decision to come into court and to plead guilty to this offense; and that is a loud and clear statement of what he thinks of his activities that evening and a loud and clear statement of what happened there on November 21, 1980, at the Bainter and Súmate residence.
And I submit to you why should you believe Bainter any more than you do Ramey? They are both out there. They are both committing a burglary. They are both committing a theft over $150, and they are both committing criminal damage to property.
Why is Richard Bainter supposed to be believed any more than John Ramey, and I submit to you that there is absolutely no basis for you to place more credibility on what Bainter said on that taped statement than what John Ramey did here on this stand.”

This language is clearly and correctly labelled by the defendant as erroneous. Admissions by co-defendants are generally inadmissible against an accused. (People v. Clark (1972), 50 Ill. 2d 292, 278 N.E.2d 782; People v. Tyner (1964), 30 Ill. 2d 101, 195 N.E.2d 675.) It is improper for a prosecutor to suggest to the jury during closing argument that a co-defendant’s guilty plea can be considered as evidence of the defendant’s guilt. (People v. Sullivan (1978), 72 Ill. 2d 36, 377 N.E.2d 17.) The State’s contention that the prosecutor’s remarks merely argued the weight which the jury should attach to the defendant’s taped confession as compared with John Ramey’s testimony is arguable.

The prosecutor’s comments regarding Ramey’s guilty plea as evidence of the defendant’s guilt constituted error. However, in light of the overwhelming evidence of the defendant’s guilt, the error was harmless.

The defendant’s final argument is that the prosecutor committed error during his direct examination of John Ramey by eliciting testimony that Ramey was convicted on a burglary charge arising from the same occurrence, and that the prosecutor compounded this error during closing argument by suggesting that the jurors could consider Ramey’s guilty plea in their deliberation on the defendant’s guilt or innocence. It is debatable whether, under the facts of this case, the prosecutor’s examination of Ramey constituted error. However, any error committed was harmless in light of the overwhelming evidence against the defendant.

Witness Ramey testified fully regarding his participation in the offense. He stated that he, Jon Stone and the defendant committed the crimes with which the defendant was charged. Therefore, the following exchange between the prosecutor and Ramey could not have prejudiced the defendant:

“Q Now, Mr. Ramey, you were charged with burglary for this occasion, weren’t you?
A Yes.
Q And have you been sentenced on that case yet?
A Yes.”

The defendant himself, on cross-examination, elicited the only testimony revealing to the jury that Ramey had been convicted by his pleading guilty to the burglary charge.

The prosecutor’s contested comments during closing argument responded to defense counsel’s argument that Ramey was not a credible witness. During rebuttal argument, the prosecutor stated as follows:

“Now, I want you to look at Ramey’s testimony for a little bit. As Attorney Davis pointed out to you, Mr. Ramey says, T don’t like Tim Peters [the victim].’ Now, if he doesn’t like Tim Peters, why is he coming in here and testifying against Richard Bainter? If he doesn’t like Tim Peters, he is going to say, ‘Hey, I’m going to go in and spring my buddy Bainter and Peters is not going to recover all of his money,’ and that’s absolutely incredible.
No, John Ramey came in and he made a statement today. As you were made aware from the Miranda card, the Defendant or a suspect in a crime has the right not to make a statement. Apparently Mr. Ramey chose to exercise his constitutional right not to make a statement when he was arrested, but you also know that Mr. Ramey, a month or so down the road, made the decision to come into court and to plead guilty to this offense; and that is a loud and clear statement of what he thinks of his activities that evening and a loud and clear statement of what happened there on November 21, 1980, at the Bainter and Shumate residence.
And I submit to you why should you believe Bainter any more than you do Ramey? They are both out there. They are both committing a burglary. They are both committing a theft over $150, and they are both committing criminal damage to property.
Why is Richard Bainter supposed to be believed any more than John Ramey, and I submit to you there is absolutely no basis for you to place more credibility on what Bainter said on that taped statement than what John Ramey did here on this stand.”

We find the prosecutor’s direct examination of Ramey arguably within permissible guidelines, despite the holding announced by the Illinois Supreme Court in People v. Sullivan (1978), 72 Ill. 2d 36, 377 N.E.2d 17, and upon which the defendant relies. In Sullivan, our supreme court held that it is reversible error for a trial court to allow an accomplice to testify that he has pleaded guilty to an offense and for a prosecutor subsequently to suggest in closing argument that the jurors could consider such evidence in deciding the defendant’s guilt or innocence.

The case at bar is distinguishable from Sullivan. In that case, the prosecution called the defendant’s two alleged accomplices as witnesses. One of the accomplices refused to testify. The other testified that he was serving a sentence for the armed robbery of a liquor store in Meredosia, the site of the armed robbery in question, and that he was with the defendant on May 29, 1975, the date in question, when they drove to Meredosia. The witness refused to testify further.

The prosecutor in Sullivan admitted to the jury during his closing argument that all of the evidence implicating the defendant was circumstantial. He pointed out that both accomplices had pleaded guilty to the armed robbery charge and argued that the defendant was equally guilty.

The case at bar, where the accomplice testified in detail concerning the taking of the furs and their subsequent sale by himself, the defendant and a third party, is more clearly analogous to People v. Baker (1959), 16 Ill. 2d 364, 158 N.E.2d 1, an earlier Illinois Supreme Court opinion in which the court found no reversible error where a co-defendant’s guilty plea or confession to the same crime for which the defendant stood trial was disclosed to the jury. Baker was distinguished by the court in Sullivan as follows:

“In People v. Baker (1959), 16 Ill. 2d 364, 372-73, an accomplice who fully disclosed to the jury his involvement in the crime for which the defendant was being tried was also permitted to testify that he had confessed to the crime. The court held that, in light of the accomplice’s full factual disclosure, the further disclosure that he had confessed to the crime was not unduly prejudicial to the defendant.” 72 Ill. 2d 36, 43, 377 N.E.2d 17, 20.

Additionally, in Baker the jury was instructed not to take into consideration the guilt or innocence of co-defendants not on trial, whereas in Sullivan the prosecutor urged the jury to gauge the defendant’s guilt by reference to the fact that his alleged accomplice had already pleaded guilty to the same offense. In the present case, the prosecutor argued the credibility of the accomplice-witness Ramey to the jury. In light of the overwhelming evidence against the defendant, the prosecutors comments cannot be said to have contributed substantially to the defendant’s conviction.

For the foregoing reasons, we affirm the judgment of the circuit court of Fulton County.

Affirmed.

BARRY and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE SCOTT JUSTICE BARRY

text:
    STEPHANIE HAWKINS, Plaintiff-Appellee, v. JEFFREY BRUCE HAWKINS, Defendant-Appellant.
    Third District
    No. 80-357
    Opinion filed December 29, 1981.
    BARRY, J., specially concurring.

      John W. Alsup, Jr., of Mt. Sterling, for appellant.
    Robert L. Metzler, of Pekin, for appellee.
   PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

This appeal arises from a decision of the Circuit Court of Tazewell County granting visitation privileges to the maternal grandparents of a minor child, Charland J. Hawkins. The minor’s father, Jeffrey Hawkins, urges us to find that the circuit court lacked jurisdiction to order such visitation, or alternatively, that the circumstances of the instant case do not warrant such an order. After reviewing the record and the authorities cited by counsel for both parties, we cannot agree with the father’s position and therefore affirm the decision of the circuit court.

Jeffrey Hawkins was divorced from Stephanie Hawkins on May 5, 1977. The Tazewell County Circuit Court awarded custody of Charland, the minor child of the parties, to his mother. Subsequently, on October 6, 1978, Stephanie Hawkins was murdered while residing with Charland in the State of Florida. Following this tragedy, the minor lived for a time with his father, and then with his maternal grandparents, Thomas and Margy Colson, and his maternal great-grandparents, Earl and Margaret Goodin. A dispute over custody arose between the minor’s maternal relatives and his father, with the dispute culminating in an action before the Tazewell County court. A recitation of the facts surrounding that dispute is set forth in In re Hawkins (1979), 77 Ill. App. 3d 873, 396 N.E.2d 668, wherein we determined that Jeffrey Hawkins was entitled to legal custody of his son.

Following our 1979 decision, the Colsons, Charland’s maternal grandparents, filed a petition for visitation rights. After hearing those rights were granted. Jeffrey Hawkins contends that the visitation order of the circuit court should be reversed.

An issue has been raised here regarding the venue of the Tazewell County court to grant visitation privileges to the Colsons. After filing the previously referenced custody action in the Tazewell County court, Jeffrey Hawkins moved with his son to Brown County, Illinois. It is argued that this change in residence simultaneously changed the proper venue for post-judgment petitions. We note that venue in such matters is waived unless timely objection is made. (Ill. Rev. Stat. 1979, ch. 40, par. 512(d).) Finding no such objection in the record, we need not consider whether venue in Tazewell County was proper or otherwise.

An additional issue has been raised regarding the jurisdiction of the circuit court to hear a request from grandparents for visitation privileges. Jeffrey Hawkins, the appellant here, correctly points out that the Illinois Marriage and Dissolution of Marriage Act provides express guidance for granting visitation to a noncustodial “parent”, but no similar statutory authority exists for grandparents or other interested parties. (See generally Ill. Rev. Stat. 1979, ch. 40, par. 607.) We believe the trial court was empowered to award custody to the grandparents despite the silence of the Illinois Marriage and Dissolution of Marriage Act on this issue,

Prior to the adoption of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.), the matters of divorce and child custody were regulated by the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 1 et seq. (repealed 1977)). That Act was silent not only as to visitation for grandparents and other interested parties, but also as to visitation for noncustodial parents. Nevertheless, a long-standing common-law tradition clearly established the circumstances under which parents, grandparents and others might be entitled to court-ordered visitation with a minor child. (Miner v. Miner (1849), 11 Ill. 43; Zimmerman v. Zimmerman (1909), 242 Ill. 552, 90 N.E. 192; Zechman v. Zechman (1945), 391 Ill. 510, 63 N.E.2d 499; Rodely v. Rodely (1963), 28 Ill. 2d 347, 192 N.E.2d 347; Aud v. Etienne (1970), 47 Ill. 2d 110, 264 N.E.2d 196; Chodzko v. Chodzko (1976), 66 Ill. 2d 28, 360 N.E.2d 60.) We hold that this common-law tradition has continuing validity even after the repeal of the Divorce Act, at least insofar as the tradition provides authority for extending visitation privileges to grandparents in special, limited circumstances. Chodzko v. Chodzko.

In support of this holding, we note that the rules of statutory construction argue for such a result. A statute will be construed as changing common law only to the extent that the terms thereof warrant, or as necessarily implied from what is expressed. (Sternberg Dredging Co. v. Estate of Sternberg (1957), 10 Ill. 2d 328, 140 N.E.2d 125; Acme Fireworks Corp. v. Bibb (1955), 6 Ill. 2d 112, 126 N.E.2d 688; People v. Monoson (1979), 75 Ill. App. 3d 1, 393 N.E.2d 1239.) Repeal of the common law by implication is not favored. (Reeves v. Eckles (1966), 77 Ill. App. 2d 408, 222 N.E.2d 530, appeal after remand (1969), 108 Ill. App. 2d 427, 248 N.E.2d 125.) The express language of section 607 of the Illinois Marriage and Dissolution of Marriage Act does not require the implied repeal of prior law creating visitation privileges for grandparents. In accord with this view are the writings of distinguished practitioners (Ill. Ann. Stat., ch. 40, par. 607, Historical and Practice Notes, at 69-70 (Smith-Hurd 1980)), as well as the decisions from courts of other States that have adopted the Uniform Marriage and Divorce Act from which section 607 derives. Simpson v. Simpson (Ky. 1979), 586 S.W.2d 33.

The final issue raised on this appeal concedes the authority of the court to consider a request on behalf of the grandparents for visitation, but challenges the granting of that request based on the evidence presented to the circuit court in the instant case. The leading case on this subject is Chodzko v. Chodzko. Therein, the supreme court stated:

“The right to determine the third parties who are to share in the custody and influence of and participate in the visitation privileges with the children should vest primarily with the parent who is charged with the daily responsibility of rearing the children. In the absence of unusual circumstances, these matters should not be of judicial concern.” (66 Ill. 2d 28, 35, 360 N.E.2d 60, 63.)

The Chodzko court concluded:

“[T]he giving of the visitation rights to the grandfather over the objections of the mother in the absence of any special circumstances justifying the interference with the superior custodial right of the natural parent was error.” (66 Ill. 2d 28, 35, 360 N.E.2d 60, 63.) .

Nonetheless, the Chodzko majority approvingly cited three fact situations where the special circumstances justified judicial interference on behalf of grandparents. Those special facts existed in Solomon v. Solomon (1943), 319 Ill. App. 618, 49 N.E.2d 807, Lucchesi v. Lucchesi (1947), 330 Ill. App. 506, 71 N.E.2d 920, and Boyles v. Boyles (1973), 14 Ill. App. 3d 602, 302 N.E.2d 199.

We find the facts of the case sub judice sufficiently similar to the special circumstances of the Boyles decision to sustain the visitation ordered by the circuit court. There as here, the natural parent was deceased. There as here, the minor child had a particularly close relationship with the grandparents because of their daily association. There as here, it was determined that a continuation of the relationship between the child and his grandparents would be a positive benefit affecting the best interest of the child. And, in the final analysis, it is the best interest of the child that must weigh most heavily in the court’s determination. Chodzko v. Chodzko.

For the reasons above stated, and in reliance on the authorities cited, we conclude that the order previously entered by the Tazewell County Circuit Court was correct.

Affirmed.

STOUDER, J., concurs.

JUSTICE BARRY

specially concurring:

While I agree with the result reached by the majority, I do so for reasons somewhat different from those set forth in the main.opinion. For a clearer picture of the situation as I view it, a few additional facts must first be noted.

Without unduly reciting the details of our earlier decision respecting the parties in this appeal (in re Custody of Hawkins (1979), 77 Ill. App. 3d 873, 396 N.E.2d 668), it is significant to the issues herein that the grandparents/ petitioners requested relief from the trial court with hands at least as unclean as those of the father/respondent. It appears from the earlier proceedings that the child’s mother, who had legal custody of the child, had, from the time of her divorce from Jeffrey Hawkins until early in 1978, remained in Illinois where, undoubtedly, the child had some contact with the Colsons. Then Mrs. Hawkins, without leave of court, left Illinois to live with her grandparents in Florida. When Mrs. Hawkins was murdered, the child was returned to Illinois and stayed with Jeffrey Hawkins until he was again spirited away to Florida, apparently through the joint efforts of the child’s great-grandfather and Margy Colson. At this point, petitions were filed by the great-grandparents in Florida as well as by Jeffrey Hawkins in Illinois for custody of the child. Hawkins was successful in his petition and travelled to Florida to retrieve his child. His demand was refused; and, as a result, Margy Colson was held in contempt of the Illinois court. The Florida court enforced the Illinois custody decree, Jeffrey Hawkins regained custody of the child, and ultimately this court vacated the order of contempt against Margy Colson.

This action followed wherein visitation rights, as opposed to custody, are sought by Margy and Thomas Colson. What is apparent from the history of this case is that both parties to the instant action are willing to test the limits of the judicial system to ensure that they retain as close a relationship as possible with the child. Allegations of misconduct of the parties were levied by both sides, and these were resolved by the trial court in favor of the Colsons.

The cases cited in the majority opinion establish that special circumstances, so as to permit judicial imposition of visitation rights on behalf of grandparents, must be something greater than a showing merely that one of the child’s parents is deceased. (In my opinion, the special-circumstances test established by common law has not been abolished, but is inferentially incorporated into the statute governing grandparental visitation rights which was enacted subsequent to the initiation of the instant action. (See Pub. Act 82-344.) In the instant case, the additional circumstance — the establishment of a relationship between the child and the Colsons prior to the death of the child’s mother — is the bare minimum additional factor allowable to satisfy the standard established in Illinois. Nonetheless, the trial court, having heard all of the testimony, concluded that this relationship, together with the fact of the death of the child’s mother, was adequate and allowed the grandparents the relief sought by them.

In my opinion, the evidence upon which the trial court was asked to decide whether visitation rights should be granted presented a factual issue. As a general rule on factual questions, we should, as the majority implies we should here, defer to the ruling of the trial court. In Illinois, it is axiomatic that the trial court is afforded wide discretion in custody matters, and the court’s ruling should not be disturbed without a showing that the court abused its discretion. The trial court, unlike a court of review, has an opportunity to observe the witnesses and weigh the evidence in light of witness credibility. In addition, the trial court is in a position to modify its order when/if a change in circumstances warrants further judicial action. With these considerations in mind, and despite the fact that I find the case actually weak under the special-circumstances standard, I concur with the majority opinion in affirming the trial court’s order.