Kristen B. v. Department of Children & Family Services

2022 IL App (1st) 200754

FIFTH DIVISION
January 28, 2022

No. 1-20-0754

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

KRISTEN B., CHELSEA J., ) Appeal from the Circuit Court of
QUINCITA F., and KHARIS ) Cook County.
M., )
)
Plaintiffs-Appellants, )
)
v. )
)
THE DEPARTMENT OF CHILDREN AND )
FAMILY SERVICES and MARC D. SMITH, in )
His Official Capacity as Acting Director of ) No. 2020 CH 04100
Children and Family )
Services, )
)
Defendants-Appellees )
)
(T.B., W.C., J.T., Da. G., Do. G, and V.M., ) Honorable Caroline Kate Moreland,
Intervenors-Appellees). ) Judge Presiding.

JUSTICE CONNORS delivered the judgment of the court, with opinion.
Justices Hoffman and Cunningham concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs Kristen B., Chelsea J., Quincita F., and Kharis M. are mothers of minor children

who were temporarily removed from plaintiffs’ custody by the State and were living in foster care.

Plaintiffs were granted supervised visits by the child protection division of the circuit court of

Cook County. On March 25, 2020, one of the defendants, the Illinois Department of Children and
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Family Services (DCFS), issued Action Transmittal 2020.02 (Updated) (March Action

Transmittal), which suspended in-person supervised visits due to the COVID-19 pandemic.

Plaintiffs filed a complaint in the chancery division of the circuit court that challenged the March

Action Transmittal. The circuit court dismissed the complaint under section 2-619(a)(3) of the

Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(3) (West 2018)). On appeal, the parties

dispute whether the cause is moot and whether the chancery action was void. Plaintiffs also

contend that (1) the Code does not allow an intervenor to move to dismiss a complaint, (2) the

chancery complaint action did not involve the same parties and same cause as any action pending

in the child protection division, (3) the circuit court should have considered plaintiffs’ motion for

leave to amend the complaint, and (4) the chancery complaint should have been dismissed without

prejudice. We agree with plaintiffs that the dismissal should have been without prejudice and

affirm the judgment as so modified.

¶2 I. BACKGROUND

¶3 The March Action Transmittal noted that the country and the citizens of Illinois were

“currently experiencing an unprecedented public health crisis.” In light of “the extreme

circumstances” related to COVID-19 and the need to ensure that children’s health was protected

through social distancing, DCFS suspended all in-person supervised visits between parents and

children in foster care and all sibling visits. DCFS directed staff and caregivers to identify

alternative ways to allow parent-child and sibling contact during the crisis, including via phone

calls and videoconferencing. Unsupervised visits were allowed to continue with the use of a pre-

screening tool. At the time, plaintiffs were represented in their child protection cases by assistant

public defenders.

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¶4 A. Circuit Court Proceedings

¶5 On May 6, 2020, plaintiffs, via an assistant public defender, filed a complaint in the

chancery division of the circuit court that stated in part as follows. Under various court orders,

DCFS was required to provide in-person supervised visits to plaintiffs and their children. Because

of the March Action Transmittal, defendants—DCFS and its acting director (collectively, the

DCFS defendants)—refused to provide any in-person supervised visits. Each plaintiff wanted to

continue the visits and asserted that the lack of visits was harmful to plaintiffs’ children. Plaintiffs

sought an injunction and a declaratory judgment of the parties’ rights and responsibilities under

the March Action Transmittal. Plaintiffs also asserted a claim under section 1983 of the federal

Civil Rights Act (42 U.S.C. § 1983 (2018)), stating that plaintiffs suffered damages from the

March Action Transmittal and requesting such other and further relief as the court deemed

equitable and just.

¶6 Plaintiffs also filed an emergency motion for a temporary restraining order (TRO) and

preliminary injunction. Plaintiffs asserted in part that they had no adequate remedy in their pending

child protection cases because the presiding judge had issued a gatekeeping order that limited

access to the courts to emergencies. Further, plaintiffs were not allowed to proceed on an

emergency basis on their motions to enforce existing visitation orders. Attached to the emergency

motion were affidavits from plaintiffs’ attorneys in their child protection cases. The affidavits

indicated that on certain dates in April 2020, the attorneys for Buxton, Joyce, and Fleming filed

emergency motions in the child protection division to restore visits. Buxton’s hearing was

scheduled for June 3, 2020, Joyce’s hearing was scheduled for May 22, 2020, and Fleming’s

hearing was scheduled for May 29, 2020. McDonald’s attorney tried to file an emergency motion

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in the child protection division to restore visits, but was told the motion would not be heard because

a request for in-person visits was not an emergency.

¶7 On May 11, 2020, the Cook County public guardian, as the children’s attorney and

guardian ad litem, moved for leave to intervene, stating that plaintiffs’ children were each the

subject of a pending proceeding in the child protection division. The children had an interest in

ensuring that decisions about visits were based on individualized determinations that took into

account all relevant factors. The public guardian’s motion recalled the histories of the children’s

child protection cases and asserted that plaintiffs’ chancery complaint did not consider the reasons

why the children were removed from their parents’ custody and the reasons the visits had to be

supervised. The motion noted that the temporary custody order for McDonald’s child was

scheduled for rehearing on May 22, 2020, and any party could request a review of the parent-child

visitation plan during a temporary custody hearing.

¶8 Attached to the public guardian’s motion for leave to intervene was a motion to dismiss

under section 2-619(a)(3) of the Code because the chancery action involved the same parties and

same cause as the pending child protection cases. The motion to dismiss further stated as follows.

In each plaintiff’s case, the child protection division had entered a visitation order after considering

all relevant evidence. Three of the plaintiffs had pending motions for in-person visits in the child

protection division. The fourth plaintiff’s case was in the midst of a temporary custody hearing.

Also, the court in the child protection cases had ongoing jurisdiction to review and modify parent-

child visitation plans and orders for children. The child protection division was best suited to craft

individualized solutions for the children and their parents that maintained health and safety.

¶9 At a hearing in the chancery division on May 14, 2020, plaintiffs’ counsel objected to the

public guardian intervening, stating that there was no emergency basis for doing so. Further, the

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children’s interests would be adequately represented by the DCFS defendants, who had legal

responsibility for the children’s health and welfare. The court granted the public guardian’s motion

for leave to intervene.

¶ 10 The hearing turned to the public guardian’s motion to dismiss. Counsel for the DCFS

defendants stated that she agreed with the motion and that she also intended to file a motion to

dismiss. In arguing for dismissal, the public guardian stated that visitation was intrinsic to child

protection cases and plaintiffs’ attorneys had filed motions in their child protection cases for in-

person visits. The public guardian discussed the background of plaintiffs’ child protection cases,

which he stated had complex facts. In response, plaintiffs’ counsel stated that there was ongoing

harm because the emergency motions were not being heard in the child protection division.

Further, the child protection division did not grant injunctions or have the power to hear section

1983 claims—a point disputed by the public guardian. Plaintiffs’ counsel acknowledged that the

chancery matter was not a class action and the complaint only sought a remedy for the four named

plaintiffs in the complaint.

¶ 11 Plaintiffs filed two motions in between the hearing and the court’s subsequent order on the

motion to dismiss. One motion, filed on May 15, 2020, was for leave to file an amended complaint

that added a class action count and requested that the court certify a class of parents whose in-

person supervised visits were suspended by the March Action Transmittal. The second motion,

filed on May 18, 2020, was an emergency motion to supplement the record with a special order

from the child protection division that listed continuance dates for cases previously scheduled for

March 17, 2020, through June 5, 2020. The record does not indicate that the circuit court ruled on

either motion.

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¶ 12 On May 18, 2020, the chancery division issued a written order that dismissed the complaint

with prejudice under section 2-619(a)(3) of the Code and found that plaintiffs’ motion for a TRO

was moot. The court stated that all of the plaintiffs had upcoming hearings in the child protection

division on individual motions to compel in-person visits. Since plaintiffs had pending abuse

and/or neglect cases in the child protection division, that court addressed the very issues presented

in the chancery matter. The child protection division was the appropriate forum for plaintiffs’

grievances. Plaintiffs did not present any unique issues that the child protection division was

unable to handle in its ordinary proceedings.

¶ 13 Plaintiffs filed a notice of appeal on June 11, 2020.

¶ 14 B. Motion to Dismiss the Appeal as Moot

¶ 15 While this appeal was pending, the public guardian and DCFS defendants separately

moved to dismiss the appeal as moot. In part, the public guardian stated that the March Action

Transmittal was no longer in effect. On June 15, 2020, the DCFS defendants issued Action

Transmittal 2020.07 (June Action Transmittal), which rescinded and superseded the March Action

Transmittal and set out a process for implementing in-person visits between parents and children

in foster care. The June Action Transmittal stated that DCFS’s guidance “has been and will

continued to be impacted by the status of the COVID-19 public health crisis in Illinois.

Accordingly, [DCFS] may amend its guidance in the future and will continue to assess the safety

of in-person contacts on a case-by-case basis.” The public guardian also asserted that due to

developments in their cases, plaintiffs had achieved their goal of resuming in-person visits. For

three of the plaintiffs, in-person visits resumed in July and August 2020. The child of the fourth

plaintiff returned home in June 2020 under an order of protection. Court orders for plaintiffs’ cases

were attached to the motion.

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¶ 16 In their motion to dismiss the appeal, the DCFS defendants asserted in part that nothing

indicated that DCFS would again have to implement guidance like the March Action Transmittal.

If it did, plaintiffs would have recourse in their individual child protection cases.

¶ 17 Plaintiffs responded in part that the appeal was not moot because they sought monetary

damages. Plaintiffs also raised certain exceptions to the mootness doctrine.

¶ 18 On October 5, 2020, this court denied the public guardian’s and DCFS defendants’ motions

to dismiss the appeal.

¶ 19 II. ANALYSIS

¶ 20 A. Arguments for Dismissing the Appeal

¶ 21 Initially, we address the public guardian’s and DCFS defendants’ contentions that this

appeal should be dismissed. The public guardian and DCFS defendants again assert that the appeal

is moot. The DCFS defendants also state that the underlying action is void ab initio because it was

filed outside of the scope of section 3-4006 of the Counties Code (55 ILCS 5/3-4006 (West 2018)

(duties of the public defender)).

¶ 22 1. Mootness

¶ 23 As before, the public guardian contends that the appeal is moot because the March Action

Transmittal was rescinded and because of developments in plaintiffs’ child protection cases. The

public guardian also posits that it is unlikely that a ban on supervised visits would be implemented

again. The DCFS defendants note that DCFS has issued additional directives related to in-person

visits since March 2020, but none reverted to suspending visits. The DCFS defendants further state

that the section 1983 count in plaintiffs’ complaint did not include damages in its prayer for relief

and because Acting Director Smith was named in his official capacity, damages would be barred

by sovereign immunity. Plaintiffs assert that the case is not moot to the extent that damages were

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No. 1-20-0754

pled and their complaint sufficiently suggested the potential for monetary damages. That aside,

plaintiffs note that, on remand, they could make curative amendments to the complaint. We do not

need to address whether a request for damages prevents the appeal from being moot. Another

ground raised by plaintiffs is dispositive—the voluntary cessation exception.

¶ 24 An appeal is moot if there is no actual controversy or if events have occurred that make it

impossible to grant the complaining party effectual relief. Fisch v. Loews Cineplex Theaters, Inc.,

365 Ill. App. 3d 537, 539 (2005). Generally, Illinois courts do not decide moot questions, render

advisory opinions, or consider issues when the result will not be affected no matter how those

issues are decided. In re Alfred H.H., 233 Ill. 2d 345, 351 (2009). Courts should not resolve an

issue just to establish precedent or guide future actions. Fisch, 365 Ill. App. 3d at 540.

¶ 25 Generally, a defendant’s act of voluntarily ceasing the allegedly wrongful conduct does not

make a case moot “unless it becomes absolutely clear that such behavior could not reasonably be

expected to recur.” Cohan v. Citicorp, 266 Ill. App. 3d 626, 629 (1993). This court has stated that

a public defendant need only show “that there is no basis for concluding it will return to its old

tricks once the coast is clear.” (Internal quotation marks omitted.) Hanna v. City of Chicago, 382

Ill. App. 3d 672, 680 (2008) (quoting La Salle National Bank, N.A. v. City of Lake Forest, 297 Ill.

App. 3d 36, 45 (1998)). “[G]reater stock [is placed] in [public officials’] acts of self-correction, so

long as they appear genuine.” (Internal quotation marks omitted.) Id. (quoting Magnuson v. City

of Hickory Hills, 933 F.2d 562, 565 (7th Cir. 1991)).

¶ 26 Applying the voluntary cessation doctrine, federal courts have found that challenges to

expired COVID-19 restrictions are not moot. See Cassell v. Snyders, 990 F.3d 539, 546-47 (7th

Cir. 2021) (challenge to expired 10-person limit on gatherings “[fell] short of true mootness,” and

given the uncertainty about the future course of the pandemic, challenge was not definitively

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rendered moot); Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341, 345 (7th Cir. 2020)

(challenge was not moot where it was not “absolutely clear” that the terms of an executive order

that limited gatherings would never be restored); Haney v. Pritzker, 1 No. 20 C 3653, 2021 WL

4402418, at *7 (N.D. Ill. Sept. 9, 2021) (challenge to pandemic-related closure of all Community

Day Services programs was not moot where, although many factors suggested that the chance of

renewed restriction was minimal, there was still uncertainty about the future course of the

pandemic, and so it was not absolutely clear that the restrictions could not reasonably be expected

to recur).

¶ 27 A similar uncertainty to what was noted in Cassell, Elim Pentecostal Church, and Haney

persists here. We recognize that Illinois’s response to the pandemic has evolved since March 2020.

At the time the March Action Transmittal was issued, Illinois was under a stay-at-home order. See

Mary Hansen, The Regions and Phases of Pritzker’s Plan to Reopen Illinois (May 8, 2020), NPR

Illinois, http://www.nprillinois.org/illinois/2020-05-08/the-regions-and-phases-of-pritzkers-plan-

to-reopen-illinois [https://perma.cc/SL2G-UKB6]. Currently, the entire state is in what is known

as Phase 5, where all sectors of the economy have reopened. See State of Illinois Coronavirus

Response, Regional Phase Dashboard, http://coronavirus.illinois.gov/restore-illinois/regional-

dashboard.html (last visited Jan. 11, 2022) [https://perma.cc/8YAE-GG48]. Approximately 64%

of Illinois residents are fully vaccinated. See Tracking Coronavirus in Illinois: Latest Map and

Case Count, N.Y. Times, https://www.nytimes.com/interactive/2021/us/illinois-covid-cases.html

(last visited Jan. 12, 2022) [https://perma.cc/7KXT-6L5V]. Children as young as five years old are

now eligible for the vaccine.

1
Unpublished federal decisions are not precedential, but this court may use the same reasoning
and logic where it is persuasive. Solargenix Energy, LLC v. Acciona, S.A., 2014 IL App (1st) 123403,
¶ 39 n.10.
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¶ 28 While the threat of suspending in-person supervised visits is far less than previously, that

threat is not zero. The pandemic is not over. As of the time of this writing, cases of COVID-19 are

surging. See Tracking Coronavirus in Illinois: Latest Map and Case Count, N.Y. Times,

https://www.nytimes.com/interactive/2021/us/illinois-covid-cases.html (last visited Jan. 12, 2022)

[https://perma.cc/7KXT-6L5V]. A significant percentage of Illinois residents are not vaccinated.

Given the ongoing uncertainty about the course of the pandemic, we cannot say there is no basis

to conclude that DCFS will never again suspend in-person supervised visits. Plaintiffs’ challenge

is not moot.

¶ 29 2. Public Defender Statute

¶ 30 As another reason to dismiss the appeal, the DCFS defendants contend that the underlying

action was void ab initio because it was filed outside the scope of section 3-4006 of the Counties

Code (55 ILCS 5/3-4006 (West 2018)), which confines the scope of the public defender’s duties

to a narrow category of cases. The DCFS defendants argue that, based on statutory language from

the Counties Code and Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2018)), the

public defender may not represent parents outside of child protection proceedings.

¶ 31 We do not need to resolve whether the assistant public defender that represented plaintiffs

in the chancery action ran afoul of his statutory duties. Even if he did, any deviation would not

make the underlying action void. Whether a judgment is void or voidable is a matter of jurisdiction.

LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 27. Jurisdiction consists of two elements: subject

matter jurisdiction and personal jurisdiction. People v. Castleberry, 2015 IL 116916, ¶ 12. Any

judgment from a court that does not have jurisdiction is void and may be collaterally attacked.

In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998). In contrast, an erroneous judgment from a

court with jurisdiction is only voidable and may not be collaterally attacked. Id. The DCFS

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defendants do not identify the type of jurisdiction that the circuit court allegedly lacked. We

presume their challenge is to the court’s subject matter jurisdiction, which is the power “to hear

and determine cases of the general class to which the proceeding belongs.” (Internal quotation

marks omitted.) Castleberry, 2015 IL 116916, ¶ 12. Whether a circuit court has subject matter

jurisdiction to entertain a claim is a question of law that we review de novo. Goodwin v. Matthews,

2018 IL App (1st) 172141, ¶ 13.

¶ 32 Under the current Illinois Constitution, circuit courts have original jurisdiction over all

justiciable matters and the power to review administrative actions as provided by law. LVNV

Funding, LLC, 2015 IL 116129, ¶ 30 (citing Ill. Const. 1970, art. VI, § 9). A “ ‘justiciable matter’

is a controversy appropriate for review by the court, in that it is definite and concrete, as opposed

to hypothetical or moot, touching upon the legal relations of parties having adverse legal interests.”

Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 335 (2002). Except in

the area of administrative review, the jurisdiction of the circuit court flows from the constitution

and not the legislature. Id. Ultimately, the test for subject matter jurisdiction is found in the nature

of the case as made by the complaint and the relief sought. Id. at 334-35.

¶ 33 The circuit court’s subject matter jurisdiction did not depend on the public defender statute

or any other statute. Plaintiffs’ complaint and their requested relief presented a justiciable matter,

giving the circuit court subject matter jurisdiction. Even if the assistant public defender was not

allowed to represent plaintiffs in the chancery division—a question we do not decide here—that

deviation from the statute would not deprive the circuit court of subject matter jurisdiction. See

Goodwin, 2018 IL App (1st) 172141, ¶ 18 (deviation from statutory procedure does not deprive

the circuit court of subject matter jurisdiction). The underlying action was not void ab initio, and

there is no reason to dismiss the appeal.

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¶ 34 C. Dismissal under Section 2-619(a)(3) of the Code

¶ 35 We next address plaintiffs’ arguments relating to dismissal under section 2-619(a)(3) of

the Code. Plaintiffs contend that an intervenor may not move to dismiss a complaint under section

2-619(a) of the Code and the chancery action did not involve the same parties or same cause as the

child protection action.

¶ 36 1. Rights of an Intervenor

¶ 37 Plaintiffs assert that under section 2-619(a) of the Code, a defendant may file a motion to

dismiss, but an intervenor is not a defendant. Plaintiffs acknowledge that the Code provides that

an intervenor has all the rights of an original party but contend that this does not transform an

intervenor into a defendant who may be sued or enjoined.

¶ 38 The public guardian states that this matter is forfeited. We disagree. Parties must preserve

issues or claims for appeal, but they do not need to limit their arguments on appeal to the same

ones that were made below. Brunton v. Kruger, 2015 IL 117663, ¶ 76. Plaintiffs objected to the

public guardian’s motion for leave to intervene, and the dismissal of their complaint under section

2-619(a)(3) of the Code. Though plaintiffs have not forfeited the argument that an intervenor may

not move to dismiss, it is not a basis for reversal.

¶ 39 Section 2-619(a)(3) of the Code states that a “[d]efendant may *** file a motion for

dismissal of the action *** upon any of the following grounds. *** (3) That there is another action

pending between the same parties for the same cause.” 735 ILCS 5/2-619(a)(3) (West 2018).

Section 2-408(a)(2) of the Code states that “anyone shall be permitted as of right to intervene in

an action *** when the representation of the applicant’s interest by existing parties is or may be

inadequate and the applicant will or may be bound by an order or judgment in the action.” 735

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ILCS 5/2-408(a)(2) (West 2018). An intervenor “shall have all the rights of an original party,”

subject to certain exceptions that are not at issue here. 735 ILCS 5/2-408(f) (West 2018).

¶ 40 Plaintiffs raise an issue of statutory construction, which we review de novo. Hernandez v.

Lifeline Ambulance, LLC, 2019 IL App (1st) 180696, ¶ 10. Our objective is to ascertain and give

effect to the legislature’s intent, which is best indicated by the statute’s plain and ordinary meaning.

Id. Section 2-408(f) of the Code means what it plainly says: once a party is granted the status of

an intervenor, that party may do whatever a plaintiff or defendant could do. See In re Petition for

Submittal of the Question of Annexation to the Corporate Authorities of the City of Joliet, 282 Ill.

App. 3d 684, 691 (1996) (“an intervenor can take any action the plaintiff would be entitled to do,

even if the plaintiff does not do so”); Redmond v. Devine, 152 Ill. App. 3d 68, 76 (1987) (because

an intervenor has all the rights of an original party, it could file a section 2-1401 petition to set

aside a default judgment). The circuit court properly allowed the public guardian, as an intervenor,

to move to dismiss under section 2-619(a)(3) of the Code.

¶ 41 2. Same Parties and Same Cause

¶ 42 Plaintiffs next contend that chancery action did not involve the same parties and same cause

as any action in the child protection division. According to plaintiffs, DCFS does not have the

status of a party in child protection cases. Plaintiffs further assert that the child protection action,

which consisted of the alleged neglect matters that were initiated by petitions for adjudication of

wardship, did not arise from the same transaction or occurrence as the chancery action, which

centered on the harm to all mothers from the March Action Transmittal. Plaintiffs argue that the

child protection division does not have authority to grant injunctions against DCFS. Also,

plaintiffs’ section 1983 count sought to recover for past actions, including damages, while the

emergency motions to compel visitation in the child protection division were forward-looking

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only. Plaintiffs assert that the various theories of constitutional liability raised in the chancery

complaint would not be considered in the motions in the child protection division. Plaintiffs state

that even where two actions are for the same cause, a factor to consider is the absence of a

likelihood of obtaining complete relief in the other jurisdiction.

¶ 43 As noted above, section 2-619(a)(3) of the Code allows a defendant to move to dismiss a

complaint because “there is another action pending between the same parties for the same cause.”

735 ILCS 5/2-619(a)(3) (West 2018). Section 2-619(a)(3) “ ‘is a procedural device designed to

avoid duplicative litigation.’ ” Schacht v. Lome, 2016 IL App (1st) 141931, ¶ 34 (quoting

Whittmanhart, Inc. v. CA, Inc., 402 Ill. App. 3d 848, 852 (2010)). The movant must demonstrate

with clear and convincing evidence that the two actions involve the same parties and the same

cause. Performance Network Solutions, Inc. v. Cyberklix US, Inc., 2012 IL App (1st) 110137, ¶ 29.

Section 2-619(a)(3) does not require automatic dismissal. In re M.K., 284 Ill. App. 3d 449, 456

(1996). Even if the movant meets its burden, the circuit court has the discretion to grant or deny

the motion. Hapag-Lloyd (America), Inc. v. Home Insurance Co., 312 Ill. App. 3d 1087, 1091

(2000).

¶ 44 Plaintiffs suggest that we review the dismissal de novo to the extent that the circuit court

made its judgment on the pleadings without conducting a factual inquiry, making a discretionary

analysis, or weighing evidence. Plaintiffs cite Miller v. Thomas, 275 Ill. App. 3d 779, 786-87

(1995), which involved a dismissal under sections 2-619(a)(2) and 2-619(a)(9) of the Code. We

see no reason to depart from the abuse of discretion standard of review that applies to dismissals

under section 2-619(a)(3) of the Code. Though motions to dismiss are generally reviewed de novo

because they do not require the circuit court to weigh facts or determine credibility, a section 2-

619(a)(3) dismissal is inherently procedural and urges the circuit court to weigh several factors.

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Combined Insurance Co. of America v. Certain Underwriters at Lloyd’s, London, 356 Ill. App. 3d

749, 753 (2005). The circuit court’s written order reflects that it indeed weighed several factors

before dismissing plaintiffs’ complaint. We will review the court’s decision for an abuse of

discretion. Hapag-Lloyd (America), Inc., 312 Ill. App. 3d at 1091. A court abuses its discretion

when its ruling is arbitrary, fanciful, or unreasonable or when no reasonable person would take the

same view. Schacht, 2016 IL App (1st) 141931, ¶ 34.

¶ 45 Actions involve the same parties “where the litigants’ interests are sufficiently similar, even

though the litigants differ in name or number.” (Internal quotation marks omitted.) Performance

Network Solutions, Inc., 2012 IL App (1st) 110137, ¶ 30 (quoting Combined Insurance Co. of

America, 356 Ill. App. 3d at 754). In a child protection action, “the minor who is the subject of the

proceeding” and the minor’s “parents, guardian, legal custody or responsible relative who are

parties respondent have the right to be present” and be heard. 705 ILCS 405/1-5(1) (West 2018).

In the chancery action, plaintiffs sued DCFS and its acting director. Plaintiffs assert that the same

parties are not involved in the two proceedings because DCFS is not technically a party in the child

protection case. Plaintiffs state that, under section 1-5(2)(a) of the Juvenile Court Act (705 ILCS

405/1-5(2)(a) (West 2018)), representatives of agencies interested in the minor—such as DCFS—

have a right to be heard; however, they do “not thereby become a party to the proceeding.”

¶ 46 DCFS had similar interests in both the child protection and chancery actions. DCFS is

charged with providing child welfare services. 20 ILCS 505/5 (West 2018). Among other duties,

DCFS protects and promotes the health, safety, and welfare of children and provides services so

children can return to their families. 20 ILCS 505/5(a)(3)(A), (D) (West 2018). DCFS’s duty to

protect children in the context of the COVID-19 pandemic was at issue in both cases. We find no

error in the court’s finding that the same parties were involved in both actions.

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¶ 47 Actions involve the same cause when the requested relief is based on substantially the same

set of facts. Combined Insurance Co. of America, 356 Ill. App. 3d at 753. The central inquiry is

“whether the two actions arise out of the same transaction or occurrence [citation], not whether the

legal theory, issues, burden of proof or relief sought materially differ between the two actions.”

(Internal quotation marks omitted.) Id. (quoting Kapoor v. Fujisawa Pharmaceutical Co., 298 Ill.

App. 3d 780, 786 (1998)). The purpose of the actions does not need to be identical—it is enough

if there is a substantial similarity of issues. Id.

¶ 48 The child protection action consisted of the abuse and/or neglect proceedings involving the

plaintiffs’ children, of which plaintiffs’ emergency motions to compel in-person visits were a part.

As background, the Juvenile Court Act sets out a step-by-step process to decide whether children

should be removed from their parents and made wards of the court. In re Arthur H., 212 Ill. 2d

441, 462 (2004) (citing 705 ILCS 405/1-1 et seq. (West 2000)). Children may be removed from

their parents’ custody only when their safety or welfare—or the protection of the public—cannot

be adequately safeguarded without removal. 705 ILCS 405/1-2 (West 2018). As part of its duties

in child protection proceedings, DCFS must file a parent-child visiting plan, with “the frequency,

duration, and locations of visitation *** measured by the needs of the child and family.” 705 ILCS

405/2-10(2) (West 2018). Further, DCFS may restrict or terminate visits without a court order if

DCFS believes that the visits would be contrary to the child’s health, safety, and welfare. Id.

Plaintiffs’ child protection proceedings, both generally and with respect to their motions to compel

in-person visits, involved planning and implementing visits. In plaintiffs’ cases, it was determined

that supervised visits best met the relevant needs. In the chancery action, plaintiffs challenged the

suspension of visits. Based on the framework of the child protection proceedings, the same facts

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would be at issue in both actions—what visits should look like in the context of the ongoing

circumstances, including the COVID-19 pandemic.

¶ 49 Plaintiffs highlight the specific relief requested in the chancery action: a declaratory

judgment, injunction, and potential monetary damages. The parties dispute whether damages were

properly pled, but we need not resolve that matter because whether the child protection division

could grant the same relief as the chancery division is beside the point. The circuit court’s analysis

under section 2-619(a)(3) does not depend on the relief requested or the theories raised. See

Katherine M. v. Ryder, 254 Ill. App. 3d 479, 487 (1993) (that the plaintiffs were unable to assert

state law claims in federal court was irrelevant). Even if the chancery complaint raised additional

issues and sought different relief, the two actions were still substantially similar. In both actions,

plaintiffs desired visits with their children, which would have to be fashioned by taking a variety

of needs and circumstances into account. See Hapag-Lloyd (America), Inc., 312 Ill. App. 3d at

1095-96 (that a state suit raised additional claims from a federal suit and those claims involved

different facts were “of little importance” to whether the suits were for the same cause).

¶ 50 Plaintiffs also state that the circuit court should not have relied on the upcoming hearing

dates for plaintiffs’ emergency motions to compel in-person visits. Plaintiffs assert that there was

no scheduled hearing date for plaintiff McDonald and the dates for the other plaintiffs were

illusory. Plaintiffs note that by the time of the chancery division’s dismissal, it was apparent that

there would be continuances.

¶ 51 On the same date that the circuit court dismissed the chancery complaint, plaintiffs filed an

emergency motion to supplement the record with the continuance dates from the child protection

division. The record does not indicate that the circuit court ruled on the motion. It is the

responsibility of the party filing a motion to request a ruling. When no ruling has been made on

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the motion, it is presumed to have been abandoned unless there are circumstances that indicate

otherwise. Commerce Trust Co. v. Air 1st Aviation Cos., 366 Ill. App. 3d 135, 142 (2006). Whether

the circuit court was aware of the updated continuance dates is unclear. Plaintiffs abandoned their

motion by failing to obtain a ruling on it. At the same time, the record before the circuit court

indicated that normal court operations were curtailed in spring 2020. We acknowledge how

challenging the situation was to all involved and that virtual parent-child visits are far from ideal.

Still, the delays in the child protection division were not enough to avoid dismissal. Plaintiffs did

not show that the child protection division was ineffective or unable to address plaintiffs’ visitation

issues. See In re M.K., 284 Ill. App. 3d at 459 (alleged lack of progress in federal litigation did not

warrant reversing dismissal where the party failed to demonstrate that the federal forum was

ineffective or that the parties in the federal forum abandoned their efforts). Indeed, three of the

plaintiffs resumed in-person visits in summer 2020, and the fourth plaintiff’s child returned home.

The delay in the child protection proceedings was not a reason to maintain the chancery action.

¶ 52 Plaintiffs also assert that the public guardian failed to provide a sufficient record

establishing that the two actions were for the same cause. Plaintiffs state that the public guardian

did not provide the circuit court with any of the emergency motions to compel visitation that were

filed in the child protection court and only provided oral representations that the same issues were

pending.

¶ 53 The public guardian responds that plaintiffs forfeited this matter. Again, we require parties

to preserve issues or claims for appeal, and we do not require parties to limit their arguments to

the same arguments that were made below. Brunton, 2015 IL 117663, ¶ 76. Plaintiffs’ argument

about the missing motions supports its claim that the circuit court abused its discretion and is not

forfeited.

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¶ 54 Still, the circuit court did not need the actual emergency motions to compel in-person visits

to find that the two actions involved the same parties for the same cause. The purpose of child

protection proceedings and the fact that the child protection proceedings were ongoing—though

delayed—was sufficient for the circuit court’s analysis. Ultimately, the circuit court must weigh

the prejudice to the nonmovant if the section 2-619(a)(3) motion is granted against the policy of

avoiding duplicative litigation. Overnite Transportation Co. v. International Brotherhood of

Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, 332 Ill. App. 3d 69, 78

(2002). Based on the information presented to the court about plaintiffs’ child protection

proceedings, the circuit court did not abuse its discretion when it dismissed the chancery

complaint.

¶ 55 D. Motion for Leave to Amend the Complaint

¶ 56 Next, plaintiffs contend that the circuit court should not have dismissed the case without

considering their motion for leave to amend the complaint, which added a class action count.

Plaintiffs state that if the court was not aware of the proposed amendment, then there was a

breakdown in communication that warrants vacating the judgment and reopening the matter so

that the amendment can be considered.

¶ 57 Plaintiffs filed a motion for leave to amend their complaint on May 15, 2020, in between

the hearing on the section 2-619(a)(3) motion and the circuit court’s written order that dismissed

the complaint. The record does not indicate that the circuit court ruled on the motion for leave to

amend. As stated above, the party filing a motion is responsible for requesting that the circuit court

rule on it. Commerce Trust Co., 366 Ill. App. 3d at 142. Also, “[a] subsequently filed notice of

appeal following the failure by a litigant to obtain a ruling on a motion serves as an abandonment

of the previously filed motion.” Rodriguez v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429,

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433 (2007). Here, plaintiffs filed a notice of appeal after filing—but not obtaining a ruling on—

their motion for leave to amend the complaint. Plaintiffs abandoned the motion for leave to amend

the complaint and forfeited any issue related to that motion for purposes of this appeal. See id.

(failure to obtain a ruling on a motion before filing notice of appeal resulted in abandonment of

the motion and created a procedural default of any issue related to that motion on appeal).

¶ 58 E. Dismissal with Prejudice

¶ 59 Lastly, plaintiffs assert that dismissing the chancery complaint with prejudice was

reversible error. Plaintiffs contend that the complaint was not deficient and should have been

dismissed without prejudice. Plaintiffs further state an amended complaint could have been filed,

noting that counsel filed the aforementioned motion for leave to amend the complaint. Plaintiffs

also state that allegations involving damages could have been amended with more specificity as

the nature and extent of the harm became clearer.

¶ 60 As stated above, plaintiffs forfeited any issue related to the motion for leave to amend the

complaint. Still, the complaint should have been dismissed without prejudice, rather than with

prejudice.

¶ 61 A dismissal with prejudice is an adjudication on the merits that bars a plaintiff from

maintaining another action on the same claim. Johnson v. Du Page Airport Authority, 268 Ill. App.

3d 409, 418 (1994). If there is no adjudication on the merits, then a dismissal should be without

prejudice, which renders the proceedings a nullity and leaves the parties in the same position as if

the case had never been filed. Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2014 IL App

(1st) 111290, ¶ 42. The chancery complaint was dismissed under section 2-619(a)(3), which

codifies the common law plea of abatement “and signifies a present suspension of all proceedings

which, without disputing the justness of [the] plaintiff’s claim, objects only to the place, mode or

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time of asserting it, leaving [the] plaintiff open to renew the action in another place or form, or at

another time.” International Insurance Co. v. Morton Thiokol, Inc., 185 Ill. App. 3d 686, 691

(1989). The purpose of section 2-619(a)(3) is “ ‘to avoid multiplicity of suits, not to prevent access

to the courts.’ ” Tumminaro v. Tumminaro, 198 Ill. App. 3d 686, 693 (1990) (quoting Bernhardt

v. Fritzshall, 9 Ill. App. 3d 1041, 1045 (1973)). It was inconsistent with the purpose and function

of section 2-619(a)(3) to dismiss plaintiffs’ complaint with prejudice. Pursuant to our power under

Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), we modify the circuit court’s order so

that the complaint is dismissed without prejudice. As modified, we affirm that order.

¶ 62 III. CONCLUSION

¶ 63 For the foregoing reasons, the judgment of the circuit court is affirmed as modified.

¶ 64 Affirmed as modified.

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No. 1-20-0754

No. 1-20-0754

Cite as: Kristen B. v. Department of Children & Family Services, 2022 IL
App (1st) 200754

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2020-CH-
04100; the Hon. Caroline Kate Moreland, Judge, presiding.

Attorneys Sharone R. Mitchell Jr., Public Defender, of Chicago (Suzanne
for A. Isaacson, Assistant Public Defender, of counsel), for
Appellant: appellants.

Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,
for Solicitor General, and Bridget DiBattista, Assistant Attorney
Appellee: General, of counsel), for appellees.

Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain
and Mary Brigid Hayes, of counsel), for intervenors-appellees.

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