In re K.D.

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In re K.D.

State: Illinois

Court: 1st District Appellate

Docket No: 1-09-2481 Rel

Case Date: 02/04/2011

Preview:SIXTH DIVISION February 4, 2011 No. 1-09-2481 In re K.D., a Minor (The Department of Children and Family Services, and D. Jean Ortega-Piron, Guardianship Administrator of the Department of Children and Family Services, Appellants). ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County. No. 09 JD 20007

The Honorable Richard F. Walsh, 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 5710(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. He was ordered to

At his arraignment, K.D. pleaded not guilty.

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No. 1-09-2481 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 In

probation officer that K.D. could not live with him or her.

her report, Ms. Freedman noted, "it is not known where K.D. is staying." Ms. Freedman concluded "the Probation Department does In her

not appear to have resources that can meet K.D.'s needs."
1

The record does not disclose to whose custody K.D. was

released. 3

No. 1-09-2481 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." himself and others. She opined K.D. appeared to be a danger to 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. 4

No. 1-09-2481 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 case law isn't [so] clear." The trial judge responded,

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. 405/5-105(3) (West 2008) ("Definitions"). 5 See 705 ILCS

No. 1-09-2481 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. 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 No such petition was filed

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. DCFS's motion under consideration. 6 The court took

No. 1-09-2481 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. the statute says. That's what

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. has standing to appeal the portions of the court's orders 7 "DCFS

No. 1-09-2481 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 5710(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<s interpretation of section 5-710(1)(a)(iv) fails to recognize that a neglect petition is "wholly distinct from, and serves an entirely different purpose than, a delinquency 8

No. 1-09-2481 petition." In the present case, K.D.'s parents only received

notice of the filing of delinquency petitions;3 no neglect petition, which impinges upon parental rights, was ever filed. DCFS argues a court has subject matter jurisdiction to make a finding of neglect only when the procedural requirements set forth in Article II of the Act are followed. As support for this

contention, DCFS quotes the supreme court: "Proceedings under the Act are initiated by the filing of a petition for adjudication of wardship with the court pursuant to section 2-13 [of the Act]." A.H., 195 Ill. 2d at 417 (citing 705 ILCS 405/2-13 (West 1998)). DCFS contends that in the context of this case, section 2-13 of the Act "explicitly" requires the filing of a neglect petition and because no such petition was filed, the juvenile court lacked subject matter jurisdiction to enter a DCFS guardianship order, which rendered its order void. The County and K.D. filed separate briefs supporting the juvenile court's authority to enter such an order, with all three parties presenting oral argument. K.D. notes that upon a finding

of delinquency under section 5-620 of the Act, a juvenile court has the authority to determine whether the minor should be adjudicated a ward of the court. ("Findings"). 705 ILCS 405/5-620 (West 2008)

K.D. argues that the sentencing options available

under section 5-710(1)(a)(iv) of the Act with "respect to wards of the court," explicitly authorize the court to place a minor,
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K.D.'s mother was served by publication. 9

No. 1-09-2481 15 years or older, for whom an independent basis of neglect exists, in the guardianship of DCFS. The court's decision to do

so in this case was proper, even in the absence of a neglect petition. In its brief, the County argues "DCFS has inserted a

requirement into 705 ILCS 405/5-710(1)(a)(iv) that simply does not exist. Despite DCFS's claims, there [is] no requirement that

a neglect petition be filed prior to K.D. being placed in DCFS guardianship as part of his delinquency sentence." Because the

County's arguments parallel K.D.'s, we do not address them separately. The parties primarily rely on cases decided by the Third District for their contrary positions: DCFS relies on In re E.F., 324 Ill. App. 3d 174; K.D. relies on In re O.H., 329 Ill. App. 3d 254. The two cases were authored by different justices; however,

each authoring justice was a member of the panel deciding the other case. Subject Matter Jurisdiction In E.F., two delinquency petitions were filed against the minor, alleging "criminal damage to his father's property and domestic battery against his stepmother." App. 3d at 175. In re E.F., 324 Ill.

His stepmother obtained an order of protection,

which barred the minor from returning to his father's home, where he was residing. After a finding of delinquency was entered, the

guardian ad litem urged the county to file a neglect petition to address the temporary custody of the minor; the county urged the 10

No. 1-09-2481 juvenile court to "sentence E.F. to DCFS due to the 'overriding circumstances.' " In re E.F., 324 Ill. App. 3d at 175. "The

trial court found that E.F. was neglected [based on abandonment] because the order of protection barred him from his father's house. The court then placed E.F. in the custody of DCFS." In

re E.F., 324 Ill. App. 3d at 175. At the time of sentencing, section 5-710(1)(a)(iv) provided that a delinquent minor may be " 'placed in the guardianship of the Department of Children and Family Services, but only if the delinquent minor is under 13 years of age.' " decision.) (Emphasis added in

In re E.F., 324 Ill. App. 3d at 176 (quoting 705 ILCS E.F. was 16 years of age at

405/5-710(1)(a)(iv) (West 2000)). the time of sentencing. guardianship order void.

The Third District held the DCFS "In the absence of a petition to

initiate custody proceedings, the trial court lacked jurisdiction to enter a custody award. A trial court may not exceed its

authority under the Act regardless of how beneficial or desirable the result may be." In re E.F., 324 Ill. App. 3d at 177.

Relying on E.F., DCFS asserts that the circuit court below was without subject matter jurisdiction to enter the DCFS guardianship order regarding K.D., who was 16 years of age at the time of sentencing, absent the filing of a neglect petition under Article II of the Act. DCFS asserts the court erred in

concluding that E.F. is no longer controlling based on the 2008 amendment to the section. According to DCFS, the 2008 amendment 11

No. 1-09-2481 made no substantive change to section 5-710(1)(a(iv), except to raise the disqualifying age from 13 to 15. Thus, DCFS argues,

the holding in E.F. remains good law as it relates to a minor age 16, making it binding on the circuit court in this case. disagree on both counts. Holding of E.F. Contrary to the position taken by DCFS, we do not read E.F. to hold that the circuit court lacked subject matter jurisdiction because of the absence of a neglect petition; rather, the absence of a neglect petition merely confirmed that the circuit court did not have subject matter jurisdiction to enter the guardianship order. "Subject matter jurisdiction refers to a court's power We

both to adjudicate the general question involved and to grant the particular relief requested." In re A.H., 195 Ill. 2d at 415.

In actuality, the order appointing DCFS as guardian was void because the sentencing statute did not apply to E.F., as he was 16 years of age. The circuit court lacked authority to impose a

condition of probation not permitted by the version of section 5710(1)(a)(iv) in effect at the time. "[T]he Act defines the In re

scope of alternatives available to the circuit courts." E.F., 324 Ill. App. 3d at 176.

The 2001 version of section 5-710(1)(a)(iv) expressly limited the circuit court's authority to impose DCFS guardianship to a "delinquent minor *** under 13 years of age." added.) 705 ILCS 405/5-710(1)(a)(iv) (West 2000). 12 (Emphasis Had E.F. been

No. 1-09-2481 under the age of 13, no neglect petition would have been required for the circuit court to grant the particular relief it did. E.F. turned on the age of the minor involved, not the absence of a neglect petition. "[T]he trial court lacked jurisdiction to (Emphasis added.) In re E.F., 324 Ill.

enter a custody award." App. 3d at 177.

It follows that in 2001, when E.F. was decided, a custody award granting DCFS guardianship over minors 13 or older could only follow an adjudication of a neglect petition under Article II, the filing of which E.F.'s guardian ad litem urged. E.F., 324 Ill. App. 3d at 175. In re

"The [juvenile] court *** has

only the subject matter jurisdiction accorded to it by the statute and '[a]ny action taken by the circuit court that exceeds its jurisdiction is void and may be attacked at any time.' " In

re A.H., 195 Ill. 2d at 416 (quoting In re Estate of Gebis, 186 Ill. 2d 188, 193, 710 N.E.2d 385 (1999)). As the E.F. court

noted, it was a matter of legislative discretion "to limit courts' ability to award custody of certain minors to DCFS under the Act." In re E.F., 324 Ill. App. 3d at 176.

We agree with the circuit court below: the holding in E.F. does not extend beyond the terms of section 5-710(1)(a)(iv) as it existed at the time the case was decided. The version of the

section in existence in 2001 only permitted the circuit court to enter a DCFS guardianship order for minors under the age of 13. Likewise, as DCFS acknowledges here, the 2008 version of section 13

No. 1-09-2481 5-710(1)(a)(iv) unquestionably permits the circuit court to enter such an order if the delinquent minor is under 15 years of age. 705 ILCS 405/5-710(1)(a)(iv) (West 2008). The issue remains before us whether section 5-710(1)(a)(iv), as amended in 2008, authorizes the circuit court to enter a DCFS guardianship order for K.D., who was 16 at the time. The grant

of authority to the circuit court to act in accordance with the provision of the Act "is purely statutory and the proceedings and remedies provided by the Act are part of a comprehensive statutory scheme." In re A.H., 195 Ill. 2d at 416. While the

issue may more accurately be framed as whether the amended section created a "justiciable matter" pertaining to a DCFS guardianship order for a minor 15 years or older arising in a delinquency proceeding, we continue our analysis with the term "subject matter jurisdiction." See In re M.W., 232 Ill. 2d 408,

421-22, 905 N.E.2d 757 (2009) ("once such a matter is created [by legislation], the circuit courts enjoy ' "original jurisdiction of all justiciable matters" ' " (quoting In re A.H., 195 Ill. 2d at 415, quoting Ill. Const. 1970, art. VI,

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