In re K.D.

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