SIXTH DIVISION
February 4, 2011
No. 1-09-2481
In re ) Appeal from the
) Circuit Court of
K.D., a Minor ) Cook County.
)
(The Department of Children and Family ) No. 09 JD 20007
Services, and D. Jean Ortega-Piron, )
Guardianship Administrator of the )
Department of Children and Family )
Services, ) The Honorable
) Richard F. Walsh,
Appellants). ) Judge Presiding.
PRESIDING JUSTICE GARCIA delivered the judgment of the
court, with opinion.
Justice R.E. Gordon concurred in the judgment and opinion.
Justice Cahill dissented, with opinion.
OPINION
On July 9, 2009, the circuit court appointed the Illinois
Department of Children and Family Services (DCFS) as guardian of
minor K.D., then age 16, in a delinquency proceeding after making
K.D. a ward of the court. DCFS contends the circuit court was
without subject matter jurisdiction to enter such an order,
rendering the order void. According to DCFS, the Juvenile Court
Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2008)) requires
the filing of a neglect petition before a court may appoint DCFS
as guardian of a minor at least 15 years of age, in a delinquency
proceeding pursuant to section 5-710(1)(a)(iv) of the Act (705
ILCS 405/5-710(1)(a)(iv) (West 2008) ("Kinds of sentencing
orders")). Counsel for the minor, supported by the State's
No. 1-09-2481
Attorney of Cook County (County), contends section 5-
710(1)(a)(iv), as amended in 2008, confers upon the circuit court
authority to determine that "an independent basis of abuse,
neglect, or dependency" exists, without strictly adhering to the
procedural requirements for neglect petitions in Article II of
the Act. We agree with K.D. and the County, and affirm. Based
on the language added in 2008, section 5-710(1)(a)(iv) of the Act
vested the circuit court with authority to make a finding that
K.D. was neglected based on the social investigation report that
neither parent could care for him, which provided an independent
basis for a neglect finding apart from the facts underlying the
delinquency petition. Based on such a finding, the court had
authority to place K.D. in the guardianship of DCFS as a
condition of his probation.
BACKGROUND
In March 2009, a delinquency petition was filed regarding
K.D., who was 16 years old at the time. The petition charged
K.D. with 10 counts of delinquency, including aggravated robbery,
robbery, aggravated battery, battery, theft, and theft from
person. The delinquency petition alleged that in February 2009,
K.D. stole an MP3 player, Blackberry device, camera, and credit
card after repeatedly kicking and punching the victim in the
face. The petition asked that K.D. be made a ward of the court.
At his arraignment, K.D. pleaded not guilty. He was ordered to
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abide by a curfew.1
In May 2009, K.D. pleaded guilty to one count of felony
theft from person and was adjudicated delinquent. K.D. was not
taken into custody, but was ordered to have no contact with the
victim.
In July 2009, probation officer Nancy Freedman submitted a
social investigation report for consideration at the sentencing
hearing pursuant to section 5-701 of the Act (705 ILCS 405/5-701
(West 2008) ("Social investigation report")). According to the
report, prior to the February 2009 incident, K.D. had several
police "station adjustments" for theft and assault, criminal
damage to property, consumption of liquor by a minor, and
obstruction of justice. The report indicated K.D. had been
diagnosed with emotional problems, had a history of alcohol and
marijuana abuse, and was a member of a street gang. According to
the report, neither of K.D.'s parents, who never married and were
no longer a couple, provided for K.D.; nor would the parents be
able to provide for him in the foreseeable future as neither
parent had a stable living environment. Each parent told the
probation officer that K.D. could not live with him or her. In
her report, Ms. Freedman noted, "it is not known where K.D. is
staying." Ms. Freedman concluded "the Probation Department does
not appear to have resources that can meet K.D.'s needs." In her
1
The record does not disclose to whose custody K.D. was
released.
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report, Ms. Freedman suggested that K.D. "possibly *** would be
eligible for a hearing before the DCFS Dependency Committee."
On July 6, 2009, K.D. appeared before the court for
sentencing on his guilty plea on the February 2009 incident and
for an arraignment on a new delinquency petition, charging retail
theft of alcohol, to which he pleaded not guilty. K.D.'s father
and grandmother were present in court; his mother did not appear.
The court asked probation officer Freedman whether she
recommended a disposition. Ms. Freedman stated she was
constrained because she did not know K.D.'s current living
situation as her attempts to locate K.D. following her initial
interview with him for the social investigation report were
unsuccessful. Ms. Freedman stated she could ask that K.D. be
"screened in front of a committee with DCFS. [But] I think that's
really a long shot." She opined K.D. appeared to be a danger to
himself and others. The assistant State's Attorney and counsel
for K.D. noted K.D. had no place to stay, was emotionally
unstable, was not attending school, was too young to be living on
the streets, and was without any resources. The court ordered
K.D. taken into custody and continued the matter for a DCFS
representative to be present.
Three days later, on July 9, 2009, a DCFS representative
appeared at the court hearing. DCFS noted it appeared with short
notice of the hearing and was aware of few facts of the case.
DCFS questioned the juvenile court's jurisdiction to place K.D.
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in the guardianship of DCFS based on In re E.F., 324 Ill. App. 3d
174, 754 N.E.2d 837 (2001), and In re A.H., 195 Ill. 2d 408, 748
N.E.2d 183 (2001). DCFS argued the cases stand for the
proposition that a petition for adjudication of wardship of a
minor under Article II of the Act must be filed before a court
may enter a DCFS guardianship order. The trial judge responded,
"The case law isn't [so] clear." The court observed section 5-
710(1)(a)(iv) of the Act had been amended after the cases DCFS
cited were decided and noted the time to act regarding K.D. was
running short: "[T]he problem is, *** I got a kid that is going
to turn 17. And I know if he does and I haven't sentenced him,
you will be right back here saying, ['G]ee, that statute is good
law.[']"2
The juvenile court then sentenced K.D. to three years'
probation on the February 2009 incident. The juvenile court also
found K.D. neglected based on the social investigation report
finding that neither parent would allow K.D. to live with him or
her and that K.D. had no known residence. The court declared
K.D. "to be a ward of the court because of neglect" and appointed
DCFS as K.D.'s guardian. The court found "[t]he appropriate
2
The parties agree that the court was mistaken in its
belief that it had to act before K.D. turned 17, rather than 18,
in light of the felony and misdemeanor charges. See 705 ILCS
405/5-105(3) (West 2008) ("Definitions").
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services aimed at family preservation or family reunification
have been unsuccessful." As a special condition of his
probation, the court required K.D. to cooperate with any
placement by DCFS.
In its motion to reconsider, DCFS argued that a delinquent
minor, following sentencing under section 5-710(1)(a)(iv) of the
Act, may only be placed in the guardianship of DCFS in two
circumstances: (1) when the minor is under 15 years of age, and
(2) for a minor 15 years or older, when a court finds, pursuant
to Article II of the Act, that there is an independent basis,
other than the minor's delinquency, for finding abuse, neglect,
or dependency. Under the second circumstance, subject matter
jurisdiction would vest in the juvenile court to permit the entry
of a DCFS guardianship order only upon the filing of a neglect
petition under Article II of the Act. No such petition was filed
regarding K.D.
Counsel for K.D. argued that amended section 5-710(1)(a)(iv)
of the Act permitted a juvenile court, in the course of
sentencing a minor, to make a finding of neglect, independent of
the delinquency allegations, and place him or her in the
guardianship of DCFS. K.D.'s counsel argued the sentencing
section contained no explicit requirement that a neglect petition
be filed to vest the court with subject matter jurisdiction
before DCFS may be appointed guardian of a minor. The court took
DCFS's motion under consideration.
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At the August 10, 2009, hearing, DCFS set out the procedures
it believed must be followed to permit a juvenile judge, in a
sentencing context, to make a finding of neglect regarding a
minor. In denying the motion to reconsider, the court rejected
DCFS's contention that the procedures it recited were mandated by
law:
"I don't think I have to wait for
[DCFS], and some other judge, to
independently make that decision. I can hold
a hearing, which I held, and find that he is
a dependent, neglected minor. That's what
the statute says. And I don't believe that I
have to follow some [set] procedure because I
don't think that [sentencing] statute
incorporates all of the procedural and
bureaucratic requirements of [Article] II.
It's a sentencing statute and it provides
that this is one of the options that a Judge
has in sentencing a minor."
DCFS timely appeals the guardianship order of the circuit
court and the court's denial of its motion to reconsider.
ANALYSIS
We first note that neither K.D. nor the County challenges
DCFS's appeal of the circuit court's guardianship order. "DCFS
has standing to appeal the portions of the court's orders
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pertaining to it because it had a sufficient direct, immediate
and substantial interest in the orders' terms. The order
required DCFS to assume the responsibility of placing the minor[]
in an appropriate residential facility, and its compliance could
be enforced by the trial court's contempt power." In re O.H.,
L.M., B.M., B.L., 329 Ill. App. 3d 254, 257-58, 768 N.E.2d 799
(2002).
Also, we agree with the parties that whether the circuit
court had authority under the Act to appoint DCFS as K.D.'s
guardian on the basis of neglect where no neglect petition had
been first filed is subject to de novo review. In re E.F., 324
Ill. App. 3d 174, 176, 754 N.E.2d 837 (2001) (when the scope of
the circuit court's authority under the Act is at issue, de novo
review applies); In re O.H., 329 Ill. App. 3d at 258 ("The
standard of review for the construction of a statute is de
novo.").
DCFS presents two challenges to the circuit court's ruling:
(1) the circuit court erred in interpreting section 5-
710(1)(a)(iv) as providing subject matter jurisdiction for the
order it entered; and (2) the circuit court's interpretation
raises constitutional due process concerns vis-a-vis the parents
of minors similarly situated to K.D. DCFS argues that the
juvenile court