No. 2--03--1349

JUSTICE GROMETER delivered the opinion of the court:

Respondent, Perseta B., appeals a series of orders of the circuit court of Kane County thatresulted in placing her two minor children, Stephen B. and Faith B., in guardianships with twomaternal aunts. Respondent alleges error in (1) the circuit court's decision to adjudicate the minorsabused and neglected and (2) the circuit court's determination that private guardianship is anappropriate permanency goal. For the reasons that follow, we affirm. The parties are aware of thefacts and the findings of the trial court, and we will discuss them only as they pertain to the issuespresented.

I. THE ADJUDICATORY HEARING

Respondent first contests the trial court's determination that the minors were abused andneglected. We will not disturb such a determination unless it is contrary to the manifest weight ofthe evidence. In re K.S., 343 Ill. App. 3d 177, 184 (2003). In its petition for adjudication, the Stateset forth three bases upon which it asserted that the minors were abused or neglected. First, it allegedthat the minors were neglected because of the injurious environment created by respondent's mentalhealth issues. 705 ILCS 405/2--3(1)(b) (West 2002). Second, it alleged that they were neglectedbecause domestic violence issues placed them at risk of harm, creating an injurious environment. 705ILCS 405/2--3(1)(b) (West 2002). Third, it alleged that the minors were abused because respondentstruck Faith in the face and Stephen in the stomach. 705 ILCS 405/2--3(2)(i) (West 2002). Thesefindings are contrary to the manifest weight of the evidence only if an opposite conclusion is clearlyapparent. In re M.M., 337 Ill. App. 3d 764, 779 (2003). Because an opposite conclusion is not, weaffirm the trial court on these points.

In addressing the first allegation, the trial court initially noted the incident in which respondentstruck Faith in the face and Stephen in the stomach. The court later found respondent's testimonyregarding this incident lacking in credibility. It also observed that respondent was first hospitalizedin December 2002, when medical records showed a diagnosis of "delusional disorder paranoid type"and stated that bipolar disorder should be ruled out. Respondent was given Risperdal, anantipsychotic medication. A second hospitalization the following May revealed similar issues. Respondent was given Haldol and other drugs. The court then noted that, during her testimony,respondent "still presents with the same facts that she had stated to people at the hospital." The courtalso observed that the minors were concerned for and fearful of their mother. Accordingly, the courtconcluded that the State had demonstrated that respondent's mental health issues placed the minorsat risk of harm. Therefore, they were neglected.

The concept of neglect based on an injurious environment is somewhat amorphous, as it mustbe, for each case is sui generis. In re K.G., 288 Ill. App. 3d 728, 735 (1997). Each case is uniqueand must be judged on its own specific facts. In re Ashley F., 265 Ill. App. 3d 419, 424 (1994). Ina general sense, "neglect" can be defined as "the failure to exercise the care that circumstances justlydemand and encompasses both wilful and unintentional disregard of parental duty." In re M.K., 271Ill. App. 3d 820, 826 (1995).

The mere fact that a parent has a mental illness does not lead inevitably to the conclusion thatchildren in his or her care are neglected or that their environment is injurious. In order for a parent'smental illness to form the basis of a finding of an injurious environment, there must be a nexusbetween the illness and a risk of harm to the children. Although the following cases do not addressthe precise issue here, as they involved terminations of parental rights, we find them instructive onthese points.

Considering whether the rights of a parent were properly terminated due to the parent's mentalillness, the First District observed, "The unfitness of a mentally ill parent is grounded on the parent'sinability to discharge parental responsibilities, not the parent's inability to control her conduct." Inre A.J., 269 Ill. App. 3d 824, 828-29 (1994). In In re T.J., 319 Ill. App. 3d 661, 670 (2001), thecourt stated, "Moreover, the Adoption Act required the State not only to prove that Ms. Cooper wassuffering from a mental illness or impairment, but also that this mental condition rendered her unableto discharge her parental responsibilities." Similarly, it has been held that "[n]ot every parent witha psychiatric illness or condition is per se unfit to be a parent and to maintain custody of her children,"for the Adoption Act (750 ILCS 50/1 et seq. (2002)) "affects only those parents 'who cannotdischarge their parental responsibilities due to these disabilities and whose inability to do so willextend beyond a reasonable period of time.' (Emphasis omitted.)" In re B.S., 317 Ill. App. 3d 650,664 (2000), quoting In re I.D., 205 Ill. App. 3d 543, 549 (1990); see also In re M.F., 326 Ill. App.3d 1110, 1113-15 (2002).

While the above-cited cases concern the termination of parental rights, the principle they standfor is applicable here. It is not enough for the State to show that respondent suffers from a mentalillness; it must show that respondent's mental illness places the children in an injurious environment. Our review of the record indicates that the State met this burden. Most significantly, one violentepisode occurred where respondent struck Faith in the face and Stephen in the stomach. Respondenttold a caseworker from the Department of Children and Family Services (DCFS) that she wasdisciplining Faith because Faith was "mouthing off." On appeal, she attempts to characterize heractions as appropriate corporal punishment. However, the trial court specifically found respondent'saccount not credible, noting that her explanation of this incident had changed and that, at trial,respondent testified that she accidentally struck Faith. Credibility assessments lie within the provinceof the trial court. In re D.L., 326 Ill. App. 3d 262, 269 (2001).

Respondent also attempts to characterize this incident as isolated. Relying on In re N.B., 191Ill. 2d 338 (2000), respondent contends that "one isolated outburst of anger is not neglect." However, In re N.B. is distinguishable. In that case, there was no evidence that the children wereexposed to any form of violence. See In re N.B., 191 Ill. 2d at 347-49. The sole incident in whichthe respondent's conduct posed a risk of physical harm to her children involved her swinging her babycarrier as she turned, which caused the carrier to strike a wall. In fact, in that case, the supreme courtspecifically distinguished In re M.K., 271 Ill. App. 3d 820 (1995), on this ground, stating that "thereis no proof in this case that [the] respondent ever exposed her children to any source of physicalabuse." In re N.B., 191 Ill. 2d at 352-53. Similarly, the instant case is distinguishable from In re N.B.because, here, a violent episode occurred where respondent intentionally struck both of her children. Moreover, and perhaps more importantly, the incident may not be as significant in itself as it isprobative of the potentially violent nature of respondent's mental illness.

Additional evidence supports the trial court's determination. Respondent has beenhospitalized and prescribed various psychoactive medications. Respondent acknowledged that sheno longer takes them and stated that she does need help. She refused to sign a safety plan crafted byDCFS. During a status hearing, she stated, "I am refusing to go to Provena. *** If that means thatI lose my kids, well, then, we can do that today, because I will never go back there ever again." DCFS employees reported aggressive and belligerent conduct on respondent's part. On the witnessstand, she made a number of delusional statements. The minors stated that they feel safer residingwith their aunts.

In sum, ample evidence exists regarding respondent's mental illness. Furthermore, the recordshows a nexus between the illness and a risk of harm in the minor's environment, in light ofrespondent's act of violence and the minors' own testimony regarding their feeling of safety. Giventhis evidence, we cannot say that a conclusion opposite to that drawn by the trial court was clearlyapparent; therefore, we cannot say that the trial court's decision was contrary to the manifest weightof the evidence. In re April C., 345 Ill. App. 3d 872, 889 (2004).

The same evidence supports the trial court's determination regarding the second and thirdallegations made by the State. We simply cannot say that it is clearly apparent that domestic abuseissues do not exist where respondent has demonstrated a potential for violence toward her childrenand is not addressing the cause of that violence. Nor can we say that the finding that the childrenwere abused is against the manifest weight of the evidence where they were subjected to a violentattack. Therefore, we affirm the order of the trial court.

II. THE DISPOSITIONAL HEARING

During the dispositional hearing, the trial court set the minors' permanency goal as "privateguardianship." 705 ILCS 405/2--28(2)(E) (West 2002). Respondent contends that this was errorand that the permanency goal should have involved returning the minors to respondent. As apreliminary matter, the State argues that we lack jurisdiction over this portion of the appeal. Respondent asserts Supreme Court Rule 303(a) (155 Ill. 2d R. 303(a)), which pertains to finaljudgments, as the basis for appellate jurisdiction rather than seeking leave to file an interlocutoryappeal under Rule 306(a)(5) (166 Ill. 2d R. 306(a)(5)).

It is true that the setting of a permanency goal is not a final order. See In re A.H., 207 Ill. 2d.590, 594 (2003). However, a dispositional order generally is appealable. See In re Brandon S., 331Ill. App. 3d 757, 760 (2002) ("A disposition order from the juvenile court is generally considered finaland appealable. [Citation.] A disposition order concerning a ward of the court may, among otheroptions, order that the child remain with his parents, place the child with a relative or other legalguardian, commit the child to the DCFS for care and service, restore the child to his parents, or orderthat the child be partially or completely emancipated"). Although the decision respondent attacks wasrendered as part of the dispositional hearing, it is clear to us that respondent's attack is actually uponthe permanency goal itself.

It is, of course, the nature of the order rather than the nature of the hearing that is relevantin determining whether appellate jurisdiction exists. In re J.N., 91 Ill. 2d 122, 128 (1982) ("Indetermining whether a judgment is final, one should look to its substance rather than to form"). Adispositional order is final because it may change the status or rights of the parties; for example, itmight alter custody or guardianship. See 705 ILCS 405/2--23 (West 2002). A permanency order,on the other hand, does not. In re D.S., 198 Ill. 2d 309, 329 (2001), quoting In re K.H., 313 Ill. App.3d 675, 682 (2000) (holding that "[t]he selection of a permanency goal is not a final determinationon the merits with regard to termination of parental rights but, rather, an intermediate procedural steptaken for the protection of and best interests of the child").

A recent line of cases holds that appellate courts do not have jurisdiction over permanencyorders. In In re D.D.H., 319 Ill. App. 3d 989, 991 (2001), the Fifth District observed, "Thejurisdictional problem is that a permanency goal does not finally determine a right or status of a partybut instead looks at the anticipated future status of the child." (Emphasis in original.) Afterconcluding that section 2--28(3) of the Juvenile Court Act of 1987 (705 ILCS 405/2--28(3) (West2002)), which attempted to make orders setting permanency goals appealable, was unconstitutional,the court went on, "As the result of striking this statutory provision, we have an attempt to appeala nonfinal order that is not authorized by the supreme court." In re D.D.H., 319 Ill. App. 3d at 992. Thus, the Fifth District concluded that orders setting permanency goals are not appealable becausethey are not final orders. In re D.D.H., 319 Ill. App. 3d at 992. The Fourth District, in In re C.B.,322 Ill. App. 3d 1011, 1013 (2001), came to an identical conclusion: "Also as in D.D.H., theinvalidation of the appealability provision in section 2--28(3) renders this an unauthorized appeal froma nonfinal order, and we dismiss the appeal for lack of jurisdiction."

This court followed the two above-cited cases in In re A.M., 324 Ill. App. 3d 144, 145-46(2001). We held, "Based on the decisions in C.B. and D.D.H., we conclude that the order changingthe permanency goal in the instant case constitutes a nonfinal order for which the supreme court hasprovided no rule for an appeal to this court and, therefore, we lack jurisdiction to consider theappeal." (Emphasis added.) In re A.M., 324 Ill. App. 3d at 145-46. We recognize that onestatement in In re A.M. can be read as stating that it is the nature of the hearing, rather than the order,that is relevant. In re A.M., 324 Ill. App. 3d at 144-45 ("In its motion the State argues that this courtlacks the jurisdiction to consider the appeal because the statutory provision purporting to make anyorder entered in a permanency hearing immediately appealable is unconstitutional. We agree"). However, reading the case as a whole, particularly in light of its reliance on C.B. and D.D.H., it isapparent to us that the In re A.M. court was concerned about the nature of the order rather than thetype of hearing in which the order is entered. Accordingly, we conclude that we lack jurisdiction overthis part of the appeal and are compelled to dismiss it. See also In re A.Z., 325 Ill. App. 3d 722, 723-24 (2001).

The appropriate manner to invoke the jurisdiction of this court regarding an order that setsa permanency goal is to file a petition under Supreme Court Rule 306(a)(5) (166 Ill. 2d R. 306(a)(5)). Rule 306(a)(5) allows the permissive appeal of an order affecting the care and custody of a minorwhere appeal is not specifically provided for elsewhere. 166 Ill. 2d R. 306(a)(5). Because an ordersetting a permanency goal is not appealable like a dispositional order, appeal is not provided forelsewhere in the rules; therefore, such an appeal falls within the plain language of Rule 306(a)(5). The supreme court made this explicit in In re Curtis B., 203 Ill. 2d 53 (2002). It is noteworthy thatits holding was not limited to orders entered during the course of permanency hearings; rather, itapplies to orders setting permanency goals generally. See In re Curtis B., 203 Ill. 2d at 63 ("UnderRule 306(a)(5), a party who wishes to petition the appellate court for leave to appeal a permanencyorder may do so" (emphasis added)). That the order in the instant case was entered in the course ofthe dispositional hearing does not mean that Rule 306(a)(5) does not apply, any more than it meansthat the order setting the permanency goal is appealable in the same manner as a dispositional order. The dissent complains that we have created some sort of new hybrid order that is partlyappealable as of right and partly appealable only with leave of the court. We have not. All that wehave done is treat the order setting the permanency goal like any other order setting a permanencygoal and the dispositional order like any other dispositional order. We see no relevance to the factthat they were entered on the same piece of paper. In re A MINOR, 127 Ill. 2d 247, 260 (1989) ("Anapple calling itself an orange remains an apple. Actions of the circuit court having the force and effectof injunctions are still appealable even if called something else"); In re Petition to Incorporate theVillage of Greenwood, 275 Ill. App. 3d 465, 475 (1995) ("Whether an order is final for purposes ofappellate court jurisdiction is determined by the substance, as opposed to the form, of the order"). Suppose instead that a contempt order that imposed no sanctions, and thus was not appealable (seeVowell v. Pedersen, 315 Ill. App. 3d 665, 666 (2000)), was entered at the same time as thedispositional order. Would it somehow become appealable simply because it was entered along withthe dispositional order? Additionally, In re F.S., 347 Ill. App. 3d 55 (2004), has no bearing on thiscase. Undoubtedly, the failure to mention an order in a notice of appeal is not fatal in all cases;however, this principle does not make appealable an otherwise nonappealable order.

Additionally, we note that in her conclusion, respondent requests that we reverse the trialcourt's order establishing the private guardianships. Respondent's argument concerning thedispositional hearing addresses only the setting of the permanency goal. Points not argued arewaived. People v. Godinez, 91 Ill. 2d 47, 57 (1982). However, were we to address this issue, theevidence discussed in the first section of this opinion provides sufficient support for the trial court'sdecision to establish the guardianships.

III. CONCLUSION

For the foregoing reasons, the order of the circuit court of Kane County finding the minorsabused and neglected is affirmed. The portion of the appeal attacking the setting of the permanencygoal is dismissed.

Appeal dismissed in part; judgment affirmed in part.

CALLUM, J., concurs.

JUSTICE McLAREN, concurring in part and dissenting in part:

I dissent from the portion of the majority's disposition that determines that we lack jurisdictionto consider the merits of a permanency order despite the fact that the permanency issue wasentertained, considered, and ordered during the dispositional hearing. There is no case law thatindicates that matters determined and ordered at the close of a dispositional hearing are notappealable, even if they are nonfinal. The only aspect of the dispositional order that is arguably finalis the determination of the status of the child as a ward of the court, and even that is subject to futureresolution and disposition. To say that a permanency order issued as part of a dispositional order isnonfinal and therefore nonappealable is Orwellian; while all aspects of the dispositional order arenonfinal, permanency orders are a little more nonfinal. Using the logic of the majority, severalalternative results are possible. An appellant in any juvenile matter would be required to file a Rule306 or Rule 307 petition for leave to appeal any and all portions of a dispositional order other thanthe adjudication of wardship, since the other portions are nonfinal orders. The appellate court'sdecision as to whether the issue raised is covered by Rule 306 or Rule 307 would determine whetherthe appellate court even has the ability to consider the issue and, if discretion is involved, the issuemay not be resolved. For example, a nonpermanent injunction would be capable of review only underRule 307, not Rule 303. If the injunction relates to custody, it may be subject to review under Rule306. Under the logic of the majority, an appellate lawyer would have to analyze every aspect of adispositional order to determine if it is nonfinal and if it is covered in some rule relating to theappealability of a nonfinal order.

The majority posits " 'that a permanency goal does not finally determine a right or status ofa party but instead looks at the anticipated future status of the child.' " (Emphasis in original.) Slipop. at 7, quoting In re D.D.H., 319 Ill. App. 3d at 991. However, an examination of the dispositionalorder here reveals much "final determination" and very little of "anticipated future status." The trialcourt found that the initial permanency goal was not appropriate and ordered DCFS to develop apermanency goal of guardianship. The court then set no date for a future permanency hearing andcontinued the case for 67 days for "closure of case." The trial court left no question as to what thefinal goal of this case was to be. The majority mechanically applies a general rule of law withoutlooking at the facts and achieves an illogical, unsound result. At what point would respondent be ableto appeal the permanency order? After the case is closed? Such a response is absurd, for once thecase is closed there would be no reason for the entry of a permanency order.

The cases relied upon by the majority as authority involved a separation of powers issuerelating to a statutory enactment that did not involve dispositional orders. See In re A.M., 324 Ill.App. 3d 144 (2001) (and cases cited therein). These authorities are facially distinguishable from thefacts and procedural posture of this appeal. There is no legal authority to support the majority'sdecision that the trial court's permanency order is not appealable when it was entered as part of adispositional order.

To the contrary, and as the majority admits, the law is clear that a dispositional order isgenerally final and appealable. See slip op. at 6. In addition, the time to appeal from such an orderis within 30 days of the entry of the order. See In re C.S., 294 Ill. App. 3d 780, 786-87 (1998); seealso 155 Ill. 2d R. 303(a)(1); 134 Ill. 2d R. 660(b).

Thus, according to the majority, a permanency order within a dispositional order is part ofa dispositional order but is not a dispositional order. The permanency order is nonfinal andnonappealable as part of the dispositional order, but it is appealable as an interlocutory order underRule 306(a)(5). The majority has created a new hybrid of an appealable order that is partlyappealable and partly nonappealable; that is partly nonappealable as part of a final order and partlyappealable as interlocutory; that is partly nonappealable as a matter of right and partly appealable withleave of court. Applying this logic across the board to all nonfinal aspects of dispositional orderswould create an unreasonable burden on parties and courts to decipher what is appealable, by right,by leave of court, or not at all. In this case, in order for the respondent to appeal from the entiredispositional order, the majority would require that she file a notice of appeal as to paragraphs a-I,1-7, and 12-13 of the dispositional order and a separate petition for leave to appeal as to paragraphsI, j, and 11.

Such a complex interpretation of the order appealed is the least desirable interpretation, if notthe least likely to be correct. Occam's razor, "Pluralitas non est ponenda sine neccesitate," or"plurality should not be posited without necessity," as applied here, suggests that a simpler modelis more likely to be correct than a complex one. William of Occam, ca. 1285-1349. Occam's razoris also called the principle of parsimony. Today, it is interpreted to mean, "the simpler theexplanation, the better."

I agree with the majority when it states that one should look to the substance of the order rather than its form. The perverse hypothetical cited by the majority, involving a nonpunitivecontempt order, actually would make the "final"dispositional order nonfinal and nonappealable untilpunishment was meted out or the court indicated of record that no punishment was to be imposed.Then the dispositional order that included the contempt order would be final and appealable. See In re Marriage of Metz, 233 Ill. App.3d 50, 56 (1992). The contempt/dispositional order would not,as the majority contends, be final and appealable prior to a determination of the nature and extent ofpunishments. A more illuminating analogy would involve a judgment as to fewer than all parties orclaims under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). Were the majority's logic appliedto such an order, the order would remain nonappealable, even after a final and appealable judgmentwas entered. Unless the appellant renewed the request for a Rule 304(a) certification and the trialcourt granted the request, the order would remain nonfinal and nonappealable. The majority'sinterpretation is clearly incorrect as applied to Rule 304(a) orders, and it should be. There is noreason for further delay or discretion in entertaining an appeal under such circumstances. See Kralv. Fredhill Press Co. , 304 Ill. App. 3d 988, 994 (1999) ("Once the trial court enters a final judgmentdisposing of all of the issues as to all of the parties, the previously entertained and otherwise final, butnot appealable, [Rule 304(a)] order becomes both final and appealable"). Likewise, there is noreason for further delay or discretion with a permanency order that is part of a dispositional order.

The incorrect analogy aside, the substance of a permanency order is of the type that a juvenilecourt enters in a dispositional hearing. A permanency order is called a permanency order because itis usually the result of a permanency hearing, but its substance is little different from many of thefindings and determinations made at a dispositional hearing. I submit that it is the majority that isapplying form over substance. The majority's logic, when applied to other nonfinal aspects ofdispositional orders, will create havoc with appellate jurisdiction and review of dispositional orders.

I would determine that we have jurisdiction to review the entire dispositional order, includingthe permanency order. The majority's vision of jurisdiction is too cramped and myopic. As a noticeof appeal is to be liberally construed, the failure to specify an order in a notice of appeal does notpreclude this court's review of that order " 'so long as the order that is specified directly relates backto the judgment or order from which review is sought.' " (Emphasis in original.) In re F.S., 347 Ill.App. 3d 55, 68 (2004), quoting Perry v. Minor, 319 Ill. App. 3d 703, 708-09 (2001). It isappropriate to retain our jurisdiction to review an unspecified judgment if that judgment is a step inthe procedural progression leading to the judgment specified in the notice of appeal. F.S., 347 Ill.App. 3d at 69. I consider this interpretation of jurisdiction to be simpler and more appropriate. Clearly, in this case, the permanency order should be reviewable as part of the dispositional orderbecause, not only is it a step in the procedural progression leading to the dispositional order, it is partof the dispositional order. I would determine that the trial court was correct in making thedetermination as to permanency, based upon respondent's statements indicating that she had nointention of complying with any of the other nonfinal aspects of the dispositional order. Under thesecircumstances, the trial court did not abuse its discretion in entering the permanency order at thisstage of the proceedings.