FIRST DIVISION
March 28, 2011
No. 1-10-2833
In re ) Appeal from the
) Circuit Court of
VICENTE G., REYNA G. and ) Cook County.
AMERICA G., )
)
Minors-Respondents-Appellants ) No. 05 JA 1253-55
)
)
(The People of the State of )
Illinois and The Department of )
Children and Family Services, )
)
Petitioners-Appellees, )
) Honorable
v. ) Maxwell Griffin, Jr.,
)
Sandra R. ) Judge Presiding.
)
Respondent). )
PRESIDING JUSTICE HALL delivered the judgment of the court,
with opinion.
Justices Lampkin and Rochford concurred in the judgment and
opinion.
OPINION
The minor respondents, Vicente G., Reyna G. and America G.,
appeal from an order of the circuit court of Cook County granting
the motion of the petitioner, the Illinois Department of Children
and Family Services (DCFS), to terminate DCFS's guardianship of
the minors. The court's order also terminated wardship and
closed the minors' cases. On appeal, the minors contend that the
court erred when it granted DCFS's motion without making written
findings that the termination of guardianship was in the best
No. 1-10-2833
interest of the minors. The minors further contend that DCFS's
procedural rule was not a valid basis for termination of its
guardianship.
PROCEDURAL BACKGROUND
There is no dispute as to the relevant facts of this case.
On December 7, 2005, DCFS took protective custody of 14-month-old
Vicente, 2-year-old Reyna and 5-year-old America, based on
allegations that the minors' father, Vicente G., Sr. (Vicente,
Sr.), had fondled America's vagina. Following a hearing on April
5, 2006, the court found the evidence insufficient to establish
sexual abuse but sufficient to establish neglect based on
evidence that they were living in an injurious environment.
Following a dispositional hearing, the court found that it was in
the best interest of the minors that they be adjudged wards of
the court and appointed D. Jean Ortega-Pion, DCFS's guardianship
administrator, as the minors' guardian with the right to place
them. The court further found that Sandra and Vicente, Sr.,1 the
minors' parents, were unable to care for, protect, train or
discipline the minors and that it was in the minors' best
interest to remove them from the parents' custody.
In the subsequent months, Sandra attended parenting classes
and otherwise complied with DCFS's service plan. On January 17,
2007, following a hearing, the court granted Sandra's motion for
unsupervised day visits with the minors. On July 31, 2007, the
1
Vicente, Sr. did not appear in these proceedings.
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No. 1-10-2833
court granted Sandra's motion for unsupervised overnight
visitation. At the hearing on the motion, Ms. Reyes, the
caseworker, testified that Sandra was still in need of family
counseling. Reyna and Vicente did not have special needs, but
America needed individual counseling. Ms. Reyes did agree that
it was in the best interest of the minors that they have
unsupervised overnights visits with Sandra. In granting Sandra's
motion, the court ordered that a child endangerment risk
assessment protocol (CERAP) be performed prior to the first
overnight visit.
On October 19, 2007, a permanency planning hearing was
conducted; Sandra was not present. Ms. Reyes testified that
Reyna had told her that Vicente, Sr., was present in Sandra's
residence. Ms. Reyes made several visits to Sandra's residence
but found no evidence of his return. According to Sandra,
Vicente, Sr., had returned to Mexico. Subsequently, Ms. Reyes
discovered that Sandra had given birth to another child on
September 8, 2007. The baby and its father (not Vicente, Sr.)
did not live with Sandra, but the father was present when the
minors visited Sandra. The overnight visits were suspended, but
weekend visitation continued.
While Ms. Reyes reported that the minors were still doing
well, the court expressed concern that some of the minors'
evaluations were still lacking and that America was still waiting
for therapy. The court was also concerned about the implications
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No. 1-10-2833
from Sandra's unreported pregnancy and the regular presence of
the new baby's father in her residence. The court ordered the
minors' cases to be returned to court each month until it was
satisfied that progress was being made. The case was continued
to November 19, 2007, for a permanency hearing and to set a goal
for the minors' placement.
In November 2007, following a visit, Sandra and the minors
disappeared. The court issued child protection warrants. In
subsequent proceedings, Sandra was held in indirect civil
contempt of court, and a bench warrant was issued for her arrest.
DCFS continued its efforts to locate the minors and Sandra.
On January 8, 2009, a permanency planning hearing was held.
The court entered a goal of a return home in 12 months. The
court found that DCFS had made reasonable efforts to locate the
family and deferred any finding regarding the minors' placement.
The court further found that neither Sandra nor Vicente, Sr., had
made substantial progress toward return of the minors to them.
Following a number of status hearings, DCFS filed a motion to
discharge its guardianship of the minors.
On August 20, 2010, the court heard arguments on DCFS's
motion to terminate guardianship. On behalf of the minors, the
public guardian argued that the guardianships should not be
terminated. She pointed out that, if the guardianships were
terminated, the child protection warrants and any other orders
entered for the minors' protection and safety would end.
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No. 1-10-2833
Moreover, if DCFS was no longer their guardian, then the minors'
custody would revert to Sandra, even though there had been no
hearing to determine her fitness to have the minors returned to
her. The public guardian further argued that, in order to close
the case, the court must make written findings that the closing
was in the best interest of the minors. Finally, the public
guardian argued that the DCFS procedural rule, under which it
could terminate services and close a case if the family's
whereabouts are unknown for a year, was not a valid basis for
termination because the rule had never been adopted under the
procedure required by statute.
DCFS responded that it had made reasonable efforts to locate
the minors and Sandra. Owing to the minors' disappearance for
three years, the guardianship administrator could no longer
fulfill her duties as guardian. Therefore, DCFS was requesting
that the guardian be discharged.
After hearing the parties' arguments, the circuit court
questioned why the case had to remain open. The court reasoned
that if the minors were located, the case could be reopened. As
to the question of the minors' best interest, the court stated:
"So the other thing that bothers me, I guess, is the
reality of in what way are we able to assess best interest?
I mean, it seems like [the public guardian's] argument is we
should keep the case open just in case because one, it's not
a big deal to have D. Jean Ortega-Piron keep the case open
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No. 1-10-2833
and continue to make calls. That's number one. And number
two, if we close it, the mother wins. You know, she's found
unable, a risk to her children, and we just shouldn't let
her take off with the kids and defeat the court system. I
mean, essentially, that's what your argument is because the
reality is keeping the case open here is in no way helping
these kids because I can't assess what I need to assess
every six months for a permanency hearing. I can't set a
goal. I can't do anything."
After hearing further argument from the parties, the court
stated as follows:
"Okay. Well, at this point in time, I think the
Court's going to go ahead and rule and grant the motion for
DCFS and allow D. Jean Ortega-Piron to discharge her
guardianship for the three minors. Having done that, the
Court will also vacate their wardship as the Court does not
believe that it can fulfill its duties and responsibilities
given the present status that for over three years that
neither the mother, nor the children can be located, and no
one being able to suggest to this Court that we're any
closer now than we were at any time since they went missing,
and that there's any reason to believe that in the immediate
near future that the children will be located."
Thereafter, the court entered an order vacating DCFS's
guardianship of the three minors. The court also entered an
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No. 1-10-2833
order terminating the wardship and guardianship of the minors and
closing the cases.
Pursuant to Illinois Supreme Court Rule 311 (eff. Feb. 26,
2010), the minors bring this expedited appeal.
ANALYSIS
I. Compliance with the Juvenile Court Act of 1987
The minors contend that the circuit court failed to comply
with section 2-31(2) of the Juvenile Court Act of 1987 (705 ILCS
405/2-31(2) (West 2008) (the Act)).
A. Standard of Review
Whether a court failed to follow statutory requirements
presents a question of law, which we review de novo. In re Aaron
R., 387 Ill. App. 3d 1130, 902 N.E.2d 171 (2009).
B. Discussion
Section 2-31(2) of the Act provides in pertinent part as
follows:
"Whenever the court determines, and makes written factual
findings, that health, safety, and the best interests of the
minor and the public no longer require the wardship of the
court, the court shall order the wardship terminated and all
proceedings under this Act respecting that minor finally
closed and discharged. The court may at the same time
continue or terminate any custodianship or guardianship
theretofore ordered but the termination must be made in
compliance with Section 2-28." 705 ILCS 405/2-31(2) (West
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No. 1-10-2833
2008).
Section 2-28(4) of the Act provides in pertinent part as follows:
"The minor or any person interested in the minor may apply
to the court for a change in custody of the minor and the
appointment of a new custodian or guardian of the person or
for the restoration of the minor to the custody of his
parents or former guardian or custodian.
* * *
Custody of the minor shall not be restored to any
parent, guardian or legal custodian in any case in which the
minor is found to be neglected or abused under Section 2-3
or dependent under Section 2-4 of this Act, unless the minor
can be cared for at home without endangering his or her
health or safety and it is in the best interest of the
minor, and if such neglect, abuse, or dependency is found by
the court *** to have come about due to the acts or
omissions or both of such parent, guardian or legal
custodian, until such time as an investigation is made as
provided in paragraph (5) and a hearing is held on the issue
of the health, safety and best interest of the minor and the
fitness of such parent, guardian or legal custodian to care
for the minor and the court enters an order that such
parent, guardian or legal custodian is fit to care for the
minor." 750 ILCS 405/2-28(4) (West 2008).
The failure to comply with the requirements of the Act
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No. 1-10-2833
renders an order discharging a case ineffectual. Aaron R., 387
Ill. App. 3d at 1139. In that case, the minor was found to be
neglected. Following a June 26, 2007, hearing, the court found
that the State had failed to prove new allegations of neglect,
returned custody of the minor to the father and closed the case.
Subsequently, the court entered orders terminating wardship and
DCFS's guardianship, even though DCFS had not requested that it's
guardianship be terminated. DCFS appealed.
The reviewing court found that the trial court had not
complied with section 2-31(2) of the Act when it ruled without
considering the best interest of the minor and without making the
required written findings.2 Moreover, in returning custody to
the parents, the court had not complied with section 2-28(4).
The June 26, 2007, hearing concerned the State's new allegations
of neglect; there was no finding that the parents were fit to
care for the minor. Moreover, the court found that the evidence
supported the continuation of wardship and guardianship. Aaron
R., 387 Ill. App. 3d at 1142.
According to the record in this case, in 2006, the court
removed the minors from Sandra's custody finding the minors were
neglected because of their injurious environment and Sandra's
inability to protect or care for them. Subsequently, in 2007,
Sandra violated the visitation order and disappeared with the
2
The reviewing court found the trial court's nunc pro tunc
order improper. Aaron R., 387 Ill. App. 3d at 1140.
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No. 1-10-2833
minors. In 2009, the court determined that Sandra had not made
any reasonable progress toward the return of the minors to her
custody.
Nothing in section 2-31(2) requires the court to consider
only current information in its best interest determination. At
the time the court granted DCFS's motion, Sandra had violated the
court's orders relating to visitation and taken physical custody
of the minors, placing the minors in the same neglectful
situation they had been in at the very beginning of these
proceedings. The closing of the case deprived them of the
protective orders, which had been entered. Yet, rather than
consider the minors' best interest, the court remained focused on
the practicalities of keeping the case open in the absence of
Sandra and the minors.
We hold that in terminating the guardianship and wardship
and closing the minors' cases, the circuit court failed to comply
with section 2-31(2) of the Act. The court failed to consider
whether the termination of wardship and guardianship was in the
best interest of the minors and failed to make written findings.
Moreover, as the court's termination of this case resulted in the
de facto return of the minors' custody to Sandra, section 2-31(2)
required the court to comply with the requirements of section 2-
28(4) of the Act. The court did not hold a hearing, order an
investigation or make the necessary finding that Sandra was fit
to care for the minors. See 705 ILCS 405/2-28(4) (West 2008).
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No. 1-10-2833
We conclude that this case must be remanded for compliance
with section 2-31(2) of the Act.
II. DCFS Procedural Rule
We find nothing in DCFS's administrative procedure rule that
permits DCFS, rather than the circuit court, to determine when
guardianship, as opposed to services, may be terminated. In any
event, the best interest of the minors must always prevail over
DCFS's internal management rules.
CONCLUSION
The orders vacating and terminating DCFS's guardianship of
the minors, terminating the court's wardship of the minors and
closing the case are vacated, and the cause is remanded for
further proceedings.
Vacated and remanded with directions.
11