In Interest of A.H., No. 1-99-0656

1st District, March 28, 2000

SECOND DIVISION

JUSTICE GORDON delivered the opinion of the court:

Appellant D. Jean Ortega-Piron, guardianship administrator of the Department of Children and Family Services (DCFS), appeals from a juvenile court order requiring her to remove A.H., a minor child under her temporary custody, from the non-relative foster home of Margie B. The juvenile court order, which was issued over the objections of DCFS, the Cook County state's attorney, and the foster mother's court-appointed attorney, came in response to an oral emergency motion by the minor's guardian ad litem seeking removal of A.H. from the foster home. Ortega-Piron, the DCFS guardianship administrator, then filed this appeal. For the reasons set forth below, we reverse the juvenile court's order.

BACKGROUND FACTS

On or about October 19, 1998, Linda H., the mother of A.H., her (then) nine-year-old son, called the DCFS hotline asking that A.H. be removed from her home before she killed him. On October 20, the Cook County state's attorney filed a petition for adjudication of wardship with the juvenile court pursuant to section 2-13 of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-13 (West 1999)). The petition alleges child abuse and neglect pursuant to section 2-3 of the Juvenile Court Act (705 ILCS 405/2-3(1)(b), 405/2-3(2)(ii) (West 1999)). The petition also alleges that the child was taken into custody at 7:05 p.m. October 19, 1998, and that a temporary custody hearing was set for October 21 before the juvenile court.⁽¹⁾ The State's Attorney also moved that Ortega-Piron be named temporary custodian of A.H. On October 21, 1998, the juvenile court entered a temporary-custody-hearing order pursuant to section 2-10 of the Juvenile Court Act (705 ILCS 405/2-10 (West 1999)). That order provided that A.H. be removed from Linda H.'s home, and that temporary custody of the child be granted to Ortega-Piron, the DCFS guardianship administrator, with the right to place him. Also on October 21, the Cook County Public Defender was named attorney for Linda H., and the Cook County Public Guardian was named guardian ad litem (GAL) for the minor. In October 1998 A.H. was placed in the foster home of Margie B. The next hearing in the case was scheduled for December 11, 1998, but it was continued to January 19, 1999.

On December 30, 1998, Linda H. called the DCFS hotline and reported that her son indicated he was being beaten by Margie B.'s 11-year-old grandson, who occasionally visited the home. Linda H. reported that she observed cuts, welts and bruises on her son, and a swollen left eye. The telephone call was reported by DCFS in an Unusual Incident Report (UIR) dated January 5, 1999. The report was received by the GAL on January 6, and was introduced into evidence by the GAL two weeks later at the hearing previously scheduled in the petition for wardship under section 2-13 of the Juvenile Court Act.

That hearing was convened on January 19, 1999. It began with a "court family conference" in which the juvenile court reviewed the services to be provided for Linda H., including psychological evaluation and counseling. Between December 30, 1998, and the January 19 hearing, no motion was made to remove A.H. from Margie B.'s foster home, and no attempt was made to initiate any proceeding for removal of the child with DCFS (the DCFS service appeal process). However, at the January 19 hearing the GAL made an oral emergency motion (off the record) seeking removal of A.H. from the foster home because of allegations of physical abuse. The DCFS counsel objected to going forward on an emergency basis where the incident was reported nearly three weeks previous, and the GAL knew of it two weeks prior to the hearing. The DCFS counsel noted that the foster parent had not been given notice as required under sections 2-9(2) and 1-5(2) of the Juvenile Court Act (705 ILCS 405/2-9(2), 405/1-5(2)(a) (West 1999)), and that no effort had been made to give her notice. The DCFS counsel asked that the motion be held over until the next day so a petition could be filed and notice could be given. DCFS also asserted that the court must first determine that there is an emergency before proceeding. The assistant State's Attorney (ASA) asked for an offer of proof to show that there was in fact an emergency, but the GAL said she did not think such an offer was appropriate. The juvenile court then continued the motion to January 20, the next day.

However, later on January 19, 1999, the court recalled the case to hear testimony from Linda H., who according to the public defender was unable to attend the next day because of a work conflict. The ASA again asked for an offer of proof to establish that there was an emergency, and the GAL stated there were photographs showing bruises, scratches and bite marks on the minor's arms, torso and head. She added that she was not convinced the perpetrator had been identified, and that "a grandson who is still visiting the home" and a 19-year-old baby-sitter "who was sleeping when the incident occurred" still had access to A.H. The DCFS counsel stated that a DCFS Division of Child Protection (DCP) investigator had visited A.H. December 31, 1998, and that A.H. identified the 11-year-old grandson as the one who fights with him. DCFS counsel represented that a protective plan was in place barring the grandson from being in the home when Margie B. was not there. Further, DCFS averred that a DCP investigator had identified the 19-year-old baby-sitter as the alleged perpetrator.

The juvenile court then immediately proceeded to hear the testimony of Linda H., called as a witness by the GAL. Linda H. testified that she had visited her son on December 30 at the home of Ms. Davis, the person who regularly babysat A.H. when Margie B. was away. Linda H. said she noticed her son's left eye was swollen and that it looked like a black eye, and she asked him what happened. He initially said he "slept on it," but she suspected he was not telling the truth and asked him again what happened. He replied that the foster mother's grandson did it. Linda H. testified further that she took pictures of her son on that day and that they showed his swollen eye and a scratch on his back. The photos, which were introduced into evidence by the GAL, also showed a long scratch across his chest, a small bruise under his right nipple, and what looked like bite marks on his right arm. Linda H. stated that A.H. told her the incidents happened during Christmas break when school was out. He also told her that Tish, a 19-year-old baby-sitter, was present at the time but was asleep. He said Tish is the person who watches him when Margie B. is at work and the regular baby-sitter (Ms. Davis) is unavailable. He also told Linda H. he had not told anybody about the fights. Linda H. also stated that A.H. told her he wanted to leave that foster home and that the grandson was the reason. Two other foster children were in the home, but he never indicated he had any problems with those children.

According to Linda H., she next saw her son on January 6 and saw no new marks or bruises, and the black eye was gone. A.H. again told her on the 6^th that he wanted to leave the foster home. This time he added that he was "scared." He also told his mother that Margie B. had assured him that her grandson would not be allowed near him unsupervised.

On cross-examination, Linda H. conceded that she did not believe Margie B. was involved in this, and she felt Margie B. had made a good choice in picking Davis as the baby-sitter. She added that her main concern was that A.H. be with her family, with relatives.

Immediately following the testimony of Linda H. on January 19, the court called Jonester Edwards, a Central Baptist caseworker, as its own witness. Edwards testified she spoke to the foster mother by telephone on January 6, 1999, and that Margie B. told her the DCP investigator had talked to her. According to Edwards, Margie B. was upset that DCP had been called and that neither A.H. nor Linda H. had told her about the fights. Edwards spoke to the foster mother later the same day, and she told Edwards that she did not know about the fights, that the two boys were about the same age, and that she saw no indication of a black eye. Margie B. also told Edwards A.H. had set the bed on fire, that he was a bed-wetter, and that he was not happy in her home. The court then continued the matter until the next day, and directed DCFS to notify the foster parent.

On January 20, 1999, the hearing was reconvened with the foster mother present. The court appointed counsel for the foster mother, and granted her intervener status, and also summarized the previous testimony from the day before. Edwards then testified on cross-examination that she first learned of the A.H. incident on January 6, and went to see the child on January 13. She said when she saw A.H., she observed what she called "[o]ld scars" on his chest. A.H. told her the foster mother's grandson had done this to him. She also said Tish was formerly Margie B.'s foster child and lives in the home. Edwards also disclosed that she put an additional protective plan into place, to become effective as of January 20, under which Margie B. agreed not to leave A.H. alone. According to that agreement, when Margie B. left the home, she would take A.H. to Davis' home, and Tish would not ever baby-sit for him. Edwards concluded that Margie B.'s home was a "proper placement" for A.H. and she felt he was safe there.

The GAL next called James Boits, the DCP investigator initially assigned to the A.H. case. Boits testified that he first saw A.H. on December 31, 1998, and that the boy told him Margie B.'s grandson, Norman, beat him up on two or three different occasions in December 1998. A.H. did not say that he had told Margie B. about the fights. Boits said A.H. told him that when Norman visited, he and Norman would be upstairs and Tish, the baby-sitter, would be downstairs. A.H. related that they would get into a fight and Norman would beat him up, and that Tish would not intervene but would merely ask him why he didn't hit Norman back. Boits said when he examined A.H., he observed a large, wine-colored stain on the upper part of his chest that looked old, not fresh. He said he was told A.H. was allergic to oranges and that he broke out in hives when he ate them. However, Boits said he thought it unlikely the mark was from hives and that he thought it was a bruise. He said he also observed a slight puffiness under A.H.'s eye, and small scratches on his back that were scabbed over.

Boits said he talked to the foster mother on January 6, 1999, and she told him she thought A.H. should punch her grandson back when they fought. Boits also testified that Margie B. referred to A.H. as a "pansy" and a "wimp," and that she called him a wimp while A.H. was present, which Boits thought was "a little inappropriate." Boits said when he observed A.H. and Margie B. together, he felt the foster mother's demeanor and attitude seemed "a little bit cold." Boits also testified that Margie B. told him A.H. was "a difficult child to care for," that he had set the house on fire, and that he had a bed wetting problem. Boits said he felt the foster mother did not have enough "empathy and understanding of [those] behavioral problems," and that she needed more education and counseling in caring for a child with such needs. Boits also testified on cross-examination that the DCP investigation of the incident was still pending.

Notwithstanding the foregoing, Boits said he did not feel A.H. was at risk of physical harm at that point. Boits emphasized that A.H. never indicated it was an adult who physically abused or neglected him, adding that the original report focused on the grandson and A.H. getting into fights. He also noted that a protective plan was in place as of January 6 under which Margie B. assured him that if the grandson visited again, there would be direct adult supervision by someone other than Tish. Boits said he saw no reason for A.H. to be removed from Margie B.'s home.

DCFS called Margie B., who testified that A.H. was placed in her home in October 1998 and that she first learned of the DCP investigation on December 30 when Davis, the regular baby-sitter, told her. Margie B. said she questioned A.H. about the marks on his chest and he said he got them "around [his] old house where [he] used to live from [his] friends playing around." She also said A.H. told the other foster children in her home that he got the marks when "his mother was trying to kill him." Margie B. said she asked A.H. to explain, and he told her he was at the table with his mother doing homework and "he didn't have it right and she started chasing him around the table with a knife." Margie B. said A.H. never told her anything about a fight with Norman. She also stated that A.H. ate oranges shortly after Christmas and that his face swelled up and his eyes were puffy and red. On cross-examination, Margie B. denied having referred to A.H. as a "pansy," but said she did use the word "wimp." She also conceded she had complained to Edwards, the Central Baptist caseworker, that A.H. was giving her "a lot of difficulties." Margie B. stated that Tish had not baby-sat with A.H. since December 30, 1998.

At the conclusion of the testimony, the DCFS counsel again objected, noting that the motion was filed as an emergency motion but that the only substantial change since December 30 was that a protective plan was in place to eliminate the possibility that Norman and A.H. would be in the home together. Nevertheless, the judge found that an emergency did exist and that there was probable cause to believe A.H. was "abused and/or neglected within the meaning of the statute." She found that Margie B. was not a credible witness and not a truthteller, and said she did not think the foster mother could be trusted "to follow any protective plan which would be put in place." The judge stated she believed "to a moral certainty" that Margie B. called A.H. both a pansy and a wimp. The judge found there was immediate and urgent necessity to support the removal of A.H. from the foster home, and that reasonable efforts could not prevent or eliminate the necessity of that removal. She also found that the removal of A.H. from the foster home was "consistent with the health, safety and best interest of the minor." Therefore, in an order dated January 22, 1999, the judge ordered Ortega-Piron to remove A.H. from Margie B.'s home. On February 22, 1999, Ortega-Piron filed the instant interlocutory appeal pursuant to Supreme Court Rule 307(a) (166 Ill. 2d R. 307). On appeal, Ortega-Piron argues that the juvenile court's only authority to order a child removed from a foster home comes from the Juvenile Court Act, which authorizes such removal only where a temporary custody hearing is convened and an emergency is found. Ortega-Piron contends there was no such emergency here and that the juvenile court thus lacked authority to sidestep the DCFS administrative service appeal process and order A.H. removed from Margie B.'s foster home. The DCFS guardianship administrator further argues that the juvenile court violated several provisions of the Juvenile Court Act pertaining to temporary custody hearings, and that its proceeding therefore was not a valid temporary custody hearing. In addition, Ortega-Piron claims the court's decision that there was immediate and urgent necessity to remove A.H. from the foster home was against the manifest weight of the evidence. Finally, she contends the juvenile court's order violated the separation of powers doctrine.

ANALYSIS

Before addressing the merits of this case, we must first determine whether it is moot. Following the court's January 22 order, DCFS removed A.H. from Margie B.'s foster home. Although the child could be returned to Margie B.'s home, DCFS has stated that in such cases it normally does not return the minor to the foster home and that it has no intention of doing so in the instant case. "An appeal becomes moot where the issues involved in the trial court no longer exist because events occur which render it impossible for the reviewing court to grant effective relief." In re A.D.W., 278 Ill. App. 3d 476, 480, 663 N.E.2d 58, 61 (1996). While it is unlikely that A.H. would be returned by DCFS to the same foster home, it is not literally impossible for that to happen. Thus while it appears from a practical perspective that regardless of the result of this appeal, the child still would not be returned to the foster home, the appeal is nevertheless not moot as a matter of law. A.D.W., 278 Ill. App. 3d at 480, 663 N.E.2d at 61. However, even if it were moot, it would qualify for review because it involves "a question of great public interest." In re A Minor, 127 Ill. 2d 247, 257, 537 N.E.2d 292, 296 (1989). Criteria for application of that public interest exception include: "(1) the public nature of the question, (2) the desirability of an authoritative determination for the purpose of guiding public officers, and (3) the likelihood that the question will generally recur." A Minor, 127 Ill. 2d at 257, 537 N.E.2d at 296. Those criteria are met in the instant case. First, this case questions the right of a juvenile court to intervene in DCFS foster placement matters, thereby preempting the agency's authority and bypassing the DCFS administrative service appeal process. That is clearly a matter of public concern. Cf. In re R.M., 288 Ill. App. 3d 811, 816, 681 N.E.2d 652, 655 (1997) (issue of whether juvenile court may order child removed from one foster home and placed in another is issue of public concern). Moreover, consonant with the criteria set forth in A Minor, it is also desirable to offer some clarification to juvenile court judges as to when and whether such preemptive intervention may take place. In addition, it is likely that this question will recur. Cf. R.M., 288 Ill. App. 3d at 816, 681 N.E.2d at 655. Therefore, the instant case, even if it were otherwise moot, qualifies for review.

We turn now to the central issue before us: whether the juvenile court had authority under the Juvenile Court Act to preempt the authority of DCFS on issues involving the removal of a child from his foster home placement. Ortega-Piron (DCFS) argues that DCFS has exclusive jurisdiction over foster placement decisions by virtue of its service appeal process established pursuant to section 5(o) of the Children and Family Services Act (DCFS Act) (20 ILCS 505/5(o) (West Supp. 1999)). Section 5(o) provides that:

"The Department shall establish an administrative review and appeal process for children and families who request or receive child welfare services from the Department. *** An appeal of a decision concerning a change in the placement of a child shall be conducted in an expedited manner." 20 ILCS 505/5(o) (West Supp. 1999).

Under that service appeal process, foster parents and children who receive child welfare services from DCFS are among those who may appeal decisions made by or on behalf of DCFS. 89 Ill. Adm. Code