dissenting:
I respectfully dissent. I do not find that the trial court’s decision was against the manifest weight of the evidence. Although the majority acknowledges that section 7(b) of the Children and Family Services Act (hereinafter Act) (Ill. Rev. Stat. 1989, ch. 23, par. 5007(b)) properly governs these proceedings, the clear mandate of the statute is ignored. The statute provides, in pertinent part:
“In placing a child under this Act, a close relative who comes forward *** shall be selected as the preferred care provider. *** ‘[C]lose relative’ shall include a *** grandparent ***. It shall be the burden of the Department to justify the child’s placement elsewhere.” Ill. Rev. Stat. 1989, ch. 23, par. 5007(b).
Section 7(b) is a relatively new amendment and its interpretation, to date, has not been put in issue before this court. However, in Illinois it has long been held that when interpreting a statute the primary rule of construction is that the words of the statute must be given their plain and ordinary meaning. (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 194.) This panel has held that “[wjhere statutory language is certain and unambiguous it is [the] duty [of a court of review] to enforce it as enacted.” (Stuart v. Niemann (1981), 100 Ill. App. 3d 242, 243.) “If the legislative intent can be ascertained from the language of the statute, the language prevails and will be given effect; the court may not declare that the legislature did not mean what the plain language of the statute imports.” Hidden Cove Marina, Inc. v. Mondello (1983), 117 Ill. App. 3d 21, 23; see also Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.
The language in section 7(b) is clear and unambiguous. The legislative intent of the statute is that a “close relative” must be deemed the preferred caretaker unless the Department of Children and Family Services (hereinafter DCFS) can justify placing the child elsewhere. At the third reading of this statutory amendment, prior to its passage, Senator Karpiel briefly explained the proposed section:
“[The amendment] is *** very simple ***. It provides that *** a foster child’s close relative shall be the preferred care provider and that DCFS must justify reasons for placing the child elsewhere.” 85th Ill. Gen. Assem., Senate Proceedings, June 28, 1988, at 142.
One of the authors of the amendment, Representative Parcells, prior to the second reading of the proposed amendment at a House of Representatives proceeding, explained that “any relative would be preferable to sending the child to a home with strangers.” 85th Ill. Gen. Assem., House Proceedings, May 17, 1988, at 14 (statement of Representative Parcells).
This concern for primary placement with the child’s natural family is also one of the fundamental purposes of the Juvenile Court Act of 1987. (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.) The purpose and policy statement of the Juvenile Court Act of 1987 provides, in pertinent part:
“The purpose of this Act is to secure for each minor subject hereto such care and guidance *** as will serve the moral, emotional, mental, and physical welfare of the minor and the best interests of the community; to preserve and strengthen the minor’s family ties whenever possible, removing him or her from the custody of his or her parents only when his or her welfare or safety or the protection of the public cannot be adequately safeguarded without removal ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 37, par. 801 — 2.
See also In re Polovchak (1983), 97 Ill. 2d 212, 223.
The Juvenile Court Act of 1987 “clearly directs the court before whom the minor is brought to release the minor to the custody of his parents rather than prescribe detention or shelter care ***.” (In re Polovchak, 97 Ill. 2d at 223.) Section 7(b) merely extends this directive so as to include a “close relative.”
The preservation and strengthening of the minor's family ties are the clear purpose and policy of both the Juvenile Court Act of 1987 and section 7(b) of the Children and Family Services Act. Moreover, our supreme court in In re Custody of Townsend (1981), 86 Ill. 2d 502, held that the parent has superior and presumed rights to the child. The court found:
“[I]t [is] clear that the interest of a parent in the care, custody and control of his or her child is fundamental and not to be ignored or facilely swept away in the face of a competing petition for custody filed by a third party.” (Townsend, 86 Ill. 2d at 514.)
Section 7(b) would also extend this primacy principle to a “close relative.”
When the minor is placed with someone other than a “close relative,” the burden rests with the DCFS to justify the child’s placement with this particular party. (Ill. Rev. Stat. 1989, ch. 23, par. 5007(b).) There is no dispute that the standard the DCFS must meet in order to justify the child’s placement outside of the natural family is that which is in the best interest of the child. I do not find that the DCFS has met this burden.
Whether the presumption of superior rights is overcome depends upon the circumstances of each case. (In re J.K.F. (1988), 174 Ill. App. 3d 732, 734.) The trial court is given broad discretion in its assessment of the facts prior to making its determination in child-custody cases; “[o]nly where there has been an abuse of discretion or the judgment has been against the manifest weight of the evidence should the decision be reversed on appeal.” In re Stilley (1977), 66 Ill. 2d 515, 520.
Our supreme court in In re Stilley stated:
“The delicacy and difficulty of [the] child-custody and child-neglect cases justify the burden of responsibility placed on the trial court and the ensuing deference which must be given to the trial court. The trial court has the opportunity to observe the demeanor and conduct of the parties and witnesses. * * * ‘This is a vital factor in evaluating the correctness of [the trial judge’s] determination. We should not disturb his findings unless they are palpably against the weight of the evidence.’ ” Stilley, 66 Ill. 2d at 520, quoting Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, 566-67.
After carefully reviewing the record, I do not find that the trial court’s decision was against the manifest weight of the evidence. Without a lengthy recitation of the facts, I find certain pertinent data omitted by the majority.
Violetta B. spent the first four months of her life in the care of the DCFS and Theresa Lopez, a nominated foster mother. Violetta was then placed in the foster care of Betty Rodriguez. Joe Ann Stanciel did not learn of the birth of Violetta or that she was the child’s grandmother until her son informed her of this fact while he was incarcerated. Violetta was 9 or 10 months old when Stanciel was told that she had a grandchild.
Stanciel then proceeded to contact DCFS employee Patricia La-Soya. Stanciel met LaSoya at the prison where her son was incarcerated. When she informed LaSoya that she wanted to visit her grandchild, LaSoya told her to contact the DCFS office.
Stanciel followed LaSoya’s instruction and called the DCFS office, seeking visitation privileges with her grandchild. For more than one year, Stanciel’s attempts to have the DCFS return her calls were futile. When Stanciel finally reached LaSoya, she was informed that she would have to retain an attorney in order to see her grandchild. Stanciel retained an attorney, went to court and was finally able to see her grandchild 22 months after her initial request.
Violetta’s visits with Stanciel did not pose a problem until, at the behest of DCFS worker Thomas Leo, Stanciel told the child that she would like her to come and stay with her for a long time. Stanciel was ultimately seeking to have custody of the child. Stanciel also explained that Violetta would still have a relationship with her foster parent and visits with Rodriguez would continue.
The child reacted negatively to this suggestion as she had been in the care of Rodriguez since she was four months old. This negative behavior, as explained by Leo, is often exhibited in foster children going through separation trauma. Leo also testified that the relationship between Violetta and her grandmother was good:
“[T]he grandmother has an awful lot to offer Violetta. The grandmother is very concerned about Violetta. She wants to be a good grandmother to the child. She wants to make sure the child is properly raised. She wants to have the child maintain contact with her and her family.”
Leo’s later recommendation that the child remain with Rodriguez was based upon an assessment made by Carol Rolland that Violetta had bonded with Rodriguez and should not be separated from her. I also note that prior to Rolland’s assessment, Leo had recommended that the child remain with her grandmother.
The trial court in its ruling appointing Stanciel as Violetta’s private guardian analogized the case to one of a disingenuous baby-sitter. The trial court stated:
“The arguments of D.C.F.S. regarding continued guardianship in the state are not persuasive. The arguments regarding bonding and primary caretaker are not unlike those of a trusted baby sitter who takes a small child, *** four months of age, and hides out with that child, denying the biological family all access to the child for a period of over three years.
During this three-year period, the trusted baby sitter takes very good care of the child. The child and the baby sitter become bonded. The baby sitter becomes the primary caretaker for the child. When finally discovered, the trusted baby sitter argues that the Court should appoint him or her the legal guardian and allow him or her to adopt he [sic] child because the child is now bonded to him or her.
To accept the position of the Department of Children and Family Services is to allow the Department of Children and Family Services to ignore the responsibility to children and to families, to deny children and their families access to each other for long periods of time, and to defeat the purposes and the intent of the Juvenile Court Act to maintain the integrity of the family. The law would become a joke. In this particular case, the legal guardian has already treated the law as a joke.”
The trial court also brought out the fact that the child was placed with Rodriguez with the assurance that she would be able to adopt the child. As the trial court explained, “[t]his was a guarantee that D.C.F.S. could not legally make. The child was not free for adoption in 1987, and is not free for adoption now in 1990.”
I do not find that the trial court’s decision was against the manifest weight of the evidence. In the instant case, the foster mother and the child’s natural grandmother were both able and fit to care for the child. This is not a case were one of the parties was abusive or did not provide a nurturing environment. In cases such as this, I find that the doctrine of the superior right of the natural grandmother should be controlling. It is in instances where the ability of the natural parent to care for the child is subject to question that removal of the child to a third party is found to be in the child’s best interest.
For example, in People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, a case cited by the majority, the child was placed with his maternal grandfather and removed from the care of his natural father. This was due to the fact that the child’s father exhibited a complete lack of interest in the child for more than 11 years. The child was practically a stranger to his father. (Livingston, 42 Ill. 2d at 210.) In the instant case, unlike the father in Livingston, Stanciel has shown a strong concern for Violetta and a desire to be with the child since she learned of the child’s birth.
In Moseley v. Goldstone (1980), 89 Ill. App. 3d 360, another case cited by the majority, the natural mother and putative father of four children had petitioned the court to award them custody of the children. The children were in the custody of their grandparents at the time of the petition. The petitioners alleged that the grandparents were infirm and that the children’s present environment “seriously endangered their physical, mental, moral and emotional health.” Moseley, 89 Ill. App. 3d at 363.
The appellate court reversed the trial court’s order dismissing the petition and ordered the trial court to consider petitioners’ allegations. Prior to making this ruling the court stated:
“The importance of maintaining the family as a unit has long been considered central to the vitality of our societal fabric, and is indeed recognized by statute [citation]. The United States Supreme Court has held that the parental rights to custody of their children are constitutionally protected ***. *** Those rights must give way, however, where *** it is shown that custody by the natural parents is seriously challenged as being detrimental to the welfare of the children ***.” Moseley, 89 Ill. App. 3d at 369.
In the instant case, custody by the grandmother has not been shown to be detrimental to Violetta’s welfare. Stanciel is not in poor health nor do any of the parties challenge her fitness to be an adequate caretaker. In fact, as Stanciel points out, in the opening remarks of counsel for the public guardian, it was stated:
“Now [sic] one is arguing that [the] paternal grandmother is not a fit or adequate caretaker.”
I am aware that in Illinois the parent, or in this case a “close relative,” need not be shown to be totally unfit in order to award custody to a third party. (Giacopelli v. Crittenton House (1959), 16 Ill. 2d 556, 565.) However, a child should not be prevented from reuniting with his or her natural family under the circumstances of this case.
The reunification of the family has become of increasing concern in Illinois. In Norman v. Johnson (N.D. Ill. 1990), 739 F. Supp. 1182, the Legal Assistance Foundation, on behalf of more than 6,000 impoverished parents who lost custody or were threatened with loss of their children by the DCFS, filed a complaint against the director of the DCFS. The plaintiffs alleged that they lost custody or were at risk of losing custody of their children because they were homeless or unable to provide food or shelter for the children. The court ordered, inter alia, the defendant to prepare case plans to facilitate in the reunification of these families.
It was recently reported that the parties had reached a settlement which included an agreement by the DCFS to stop its practice of summarily removing the children from “inadequate homes” except in those cases where the DCFS believes the children are in “imminent danger.” (Karwath, DCFS to Offer Grants to Clean Dirty Homes, Chicago Tribune, January 26, 1991, News section at 6.) Even though the circumstances of this case are not as extreme as those in Norman v. Johnson, the majority has ruled against the reunification of Violetta with her natural grandmother.
The denial of custody to the parents or a “close relative” is based upon the theory that “the parents, through inability or unwillingness, have, by their own conduct, forfeited their right to the custody of the child.” (Ekendahl v. Svolos (1944), 388 Ill. 412, 415.) In the instant case, Stanciel has not been shown to be unwilling or unable to care for Violetta. On the contrary, Stanciel’s conduct has reflected her desire and ability to nurture and raise her own grandchild.
Stanciel’s superior right to the child should not be curtailed in these circumstances. The ramifications of preventing the reunification of the family in this and like cases may have a detrimental effect upon the children in the future. Mary Anne Brown, one of the 13 experts ordered by the Federal court on August 31, 1990, in B.H. v. Johnson (N.D. Ill.), No. 88 — C—5599, to investigate the DCFS in its placement of children under the age of 12 years, reported that 20,589 children were in substitute care in Illinois as of July 1990. Unnecessary out-of-home placement may have detrimental and far-reaching effects. The concern was expressed as follows:
“ ‘How is it possible to convince a child of his own worth after removing him from a family which is said to be unworthy, but with whom he identifies?’ ” Mary Anne Brown, October 26, 1990, “B.H. v[.] Johnson Settlement Process Placement Services Under 12 Report,” at 2, quoting Maya Angelou, author. See B.H. v. Johnson (N.D. Ill.), No. 88 — C—5599, Final Consolidated Report of Rule 706 Panel of Experts.
Stanciel is Violetta’s natural grandmother. She represents the family that Violetta will continue to identify with for the rest of her life. To hold that Stanciel is unworthy to have custody of Violetta may have a serious effect on Violetta’s own worth in the future. I find that Violetta’s placement with Rodriguez, who is not the child’s adoptive parent, may result in her later placement with another foster family and becoming lost in this substitute care system. It is not inconceivable nor unreasonable that this may also result in Violetta’s permanent separation from her grandmother.
I agree with the trial court in its holding that reunification with the natural family would be in the child’s best interest in this case. I do not find, under the circumstances of this case, that the trial court’s decision was against the manifest weight of the evidence.
I would affirm the trial court.