Docket Nos. 97531, 97580 cons.-Agenda 29-September 2004.
In re AUSTIN W., a Minor (Timothy D. Berkley, guardian ad litem,
Appellee, v. The Illinois Department of Children and Family Services,
Appellant (Rosemary Fontaine, Appellant)).
Opinion filed January 21, 2005.
CHIEF JUSTICE McMORROW delivered the opinion of thecourt:
Timothy D. Berkley, guardian ad litem (GAL) for Austin W., anabused minor, filed a motion in the juvenile division of the circuitcourt of Madison County to modify the dispositional order whichplaced Austin W. in the custody and guardianship of the IllinoisDepartment of Children and Family Services (DCFS). DCFS andRosemary Fontaine, Austin's foster mother, opposed the motion.After a hearing, the circuit court modified the dispositional order,removing DCFS as the custodian guardian and placing Austin in thecustody and guardianship of his maternal grandfather andstepgrandmother, William and Wendy Ward (the Wards).
DCFS and Fontaine appealed the circuit court's decision. Theappellate court affirmed the lower court's order. No. 5-02-0390(unpublished order under Supreme Court Rule 23). We grantedpetitions brought by DCFS and Fontaine for leave to appeal to thiscourt. 177 Ill. 2d R. 315. The appeals have been consolidated for ourreview.
BACKGROUND
Austin's mother, B.W., first came to the attention of DCFS inApril of 1996, when Austin's siblings, Chelsea H. and Nicholas W.,were taken into protective custody because Chelsea, who was thenseven months old, had cuts, bruises, and welts. The children wereadjudicated abused and placed in foster care. The children werereturned to B.W. in September 1996, but came back into care in May1997, when the children were again found to be abused and neglectedby B.W. due to risk of harm, medical neglect and inadequatesupervision.
B.W. gave birth to a second daughter, Casey W., on August 24,1997, and she, too, was taken into custody by DCFS. The recordshows that Casey and Chelsea were in several foster homes beforethey eventually were placed with the maternal grandfather and step-grandmother, William and Wendy Ward.(1) Nicholas remained in fostercare until January 1998, when his biological father gained custody ofhim.
On May 27, 1999, B.W. surrendered her parental rights to all ofher children. B.W. signed a "final and irrevocable surrender to anagency for purposes of adoption of a born child,"giving DCFS thepower to consent to Chelsea's adoption. With regard to Casey,however, B.W. entered into a private guardianship agreement with herfather and stepmother, William and Wendy. Nicholas remained withhis biological father.
It is against this backdrop that Austin W. was born on June 25,1999. Austin was taken into protective custody upon his release fromthe hospital due to "risk of harm." After a shelter care hearing, DCFSwas awarded temporary custody of Austin. See 705 ILCS 405/2-10(West 2000). DCFS then filed a petition alleging that Austin was anabused minor based on risk of physical harm due to the fact that B.W.had four prior indicated reports of abuse. It was also noted in thepetition that B.W. had surrendered her parental rights to her otherchildren after it was determined that she had failed to make reasonableprogress and failed to correct the conditions that led to the children'sremoval. Although Austin was initially placed in a nonrelative fosterhome, in August 1999, he was placed in foster care with the Wards,where his two sisters were living.
In October 1999, Central Baptist Family Services (CentralBaptist), a private agency under contract with DCFS, became theservice providers for Chelsea and Austin. Lisa Dulski, an employee ofCentral Baptist, was the caseworker whose job it was to monitor thefoster care placement of Austin and Chelsea with the Wards.
An adjudicatory hearing (see 705 ILCS 405/ 2-14, 2-18, 2-21(West 2000)) for Austin was held in November 1999, at which timeB.W. stipulated to the allegations in the abuse petition. Accordingly,Austin was adjudged an abused minor. On January 12, 2000, adispositional hearing was held. See 705 ILCS 405/2-22 (West 2000).At this hearing, it was determined that it was in Austin's best intereststhat he be made a ward of the court and placed in the custody andguardianship of DCFS. A permanency goal of "return home withinone year" was set to give B.W. an opportunity to demonstrate herability to adequately care for Austin.
A little over two months later, on March 28, 2000, William Wardtook Austin to Provena St. Joseph's Hospital after the Wards noticeda "soft spot" on the side of nine-month-old Austin's head. At thehospital, Austin was first seen by his primary physician, Dr. Alcala,who ordered that Austin have a skull X ray. The hospital contactedLisa Dulski to obtain consent for medical treatment. In this way, Lisafirst became aware that Austin had been injured.
The skull X ray taken at St Joseph's Hospital was deemed"unremarkable." The Wards were told to treat the "soft spot" firstwith ice packs, then with heat, and to follow up with their physicianin one week. At 8:30 that evening, Wendy spoke to Lisa Dulski.Although Wendy said that Austin was not fussy or crying, had nofever, and was not vomiting or showing signs of pain or discomfort,Wendy expressed concern because the spot appeared to be gettinglarger. Wendy told Lisa that the only time she could remember Austinhitting his head was the morning of the day before, when she wasgiving him his bath. Wendy said that, after wrapping Austin in a towel,she hit Austin's head on the corner of the vanity as she stood up. Shenoted, however, that the "soft spot" was not in the same location aswhere his head struck the vanity.
The next morning, on March 29, 2000, Wendy contacted Lisaand informed her that she had discovered a sore or blister in Austin'smouth. It was decided that Austin should be reevaluated. BecauseWilliam was at work and Wendy was caring for Austin's siblings, Lisaagreed to transport Austin to Silver Cross Hospital for a secondopinion.
At Silver Cross Hospital, Austin's outward appearance did notsuggest that his injury was severe. Upon examination, however, it wasdetermined that he had a fever of 101 degrees and a sore in the backof his throat. He was evaluated for bruises, though none were found.Austin's blood and urine were tested and he received a CAT scan. TheCAT scan revealed a skull fracture toward the back left side ofAustin's head. According to the physician, it was unlikely that thefracture could have resulted from striking the child's head on thevanity because there was no bruise and because a skull fracture wouldrequire a much greater impact. The physician at Silver Crossrecommended that Austin be seen by a neurosurgeon at Children'sMemorial Hospital in Chicago so that the fluid in the "soft spot" couldbe analyzed.
On the evening of March 29, 2000, the Wards took Austin toChildren's Memorial, where a second CAT scan was performed.While at the hospital, the Wards met with the hospital's social worker,Sarah Mass. Wendy told Sarah that she and William had been the soleand exclusive care providers for Austin over the past several days andthat she did not know how or when Austin was injured.
On March 30, Sarah Mass spoke with Lisa Dulski and informedher that the hospital wanted to conduct a bone scan on Austin todetermine whether there were any additional fractures or signs ofinjury. An appointment was made for April 3, 2000. In addition,because of the unexplained nature of the skull fracture, Sarah felt thata safety plan should be implemented until Austin's next evaluation. IfAustin was to remain with the Wards, the Wards should have anotheradult in the home with them at all times.
Lisa contacted the Wards and explained the situation. Initially,the Wards agreed to cooperate with the suggested safety plan.However, they later changed their minds. Unhappy with Children'sMemorial and the implication that they had abused Austin, Wendyasked Lisa if they could take Austin to some other medical facility.Lisa, who apparently agreed that the safety plan suggested byChildren's Memorial was unnecessary, contacted Healthworks (ahealth care management program for DCFS wards) on March 31,2000, to obtain a recommendation for another physician. AHealthworks nurse, Jackie Bickle, spoke with Lisa about Austin'scondition and provided her with some physicians' names. However,based on the injuries, the Healthworks nurse also insisted that Lisa callthe hot line to make a report of "suspected abuse, unknownperpetrator." After checking with her supervisor, Lisa called the hotline and made the report. Children's Memorial also called the hot lineafter Sarah Mass learned that the Wards were refusing to comply withthe safety plan and would not bring Austin in for further testing.
On the evening of March 31, 2000, in response to the hot linereports, DCFS removed Austin and his two sisters from the Wards'home. On April 4, 2000, a shelter care hearing was held. Austin'ssisters were returned to William and Wendy on the condition that theyagree to a safety plan which involved regular announced andunannounced visits to the home. Austin, however, was placed with amaternal aunt, Andrea, and the Wards were to have no contact withhim.
On April 6, 2000, Austin was admitted to Children's Memorialfor further testing and overnight observation. The bone scan revealedthat Austin had a healing fracture in his right leg (tibia). The scanindicated that the fracture was between one and three months old. Dr.Flaherty examined Austin and discovered a linear bruise on his left legthat appeared to be about one week old.
Based on this additional information, Austin's sisters were, onceagain, removed from the Wards' home on April 12, 2000. Austin wasremoved from the aunt's home and placed in the foster home ofRosemary Fontaine. The girls were examined for bruises, though nonewere found. Chelsea reported, however, that Wendy used corporalpunishment (spanking) on both her and Austin. Further, Chelsea saidthat when Wendy disciplined Austin, Wendy would take Austin intothe bedroom and close the door. If Chelsea asked Wendy what shewas doing, Chelsea was told to "mind her own business."
Chelsea and Casey remained in nonrelative foster care until May18, 2000, at which time they were returned to the Wards on thecondition that the Wards comply with "rules of supervision" for oneyear, without an admission of abuse.
In July 2000, Austin's putative father filed a denial of paternityand a consent to Austin's adoption.
On September 29, 2000, DCFS completed its investigation withregard to the report of suspected child abuse of Austin by the Wards.DCFS "indicated" the report, meaning that DCFS found that therewas "credible evidence" that the Wards had abused Austin. See 325ILCS 5/3 (West 2000). Soon after, the Wards filed an administrativeappeal. A hearing was held before an administrative law judge (ALJ)to determine whether the indicated finding should be expunged. See325 ILCS 5/7.16 (West 2000). The administrative hearing took placeon several dates throughout 2001-January 23, January 24, April 3,April 5, August 29, September 17, October 15, October 18,November 7, December 3 and December 17. Transcripts werereceived on January 4, 2002, and the record was closed on January11, 2002, after the Wards elected not to file a surreply. It should benoted that, in her opinion, the ALJ explicitly held that the Wards' dueprocess rights were not violated by the extended review processbecause: (1) the Wards' attorney failed to appear on the firstscheduled hearing date, (2) the Wards' attorney requested and agreedto several continuances based on his own availability and theavailability of his witnesses, and (3) in April 2001, when the hearingwas nearly completed, the Wards dismissed their attorney and hirednew counsel, who disclosed new witnesses and requested additionalcontinuances to accommodate those witnesses' schedules.
While the administrative hearing progressed, DCFS continued towork with B.W., Austin's mother. B.W., however, stopped attendingcounseling and failed to contact the caseworker. She had no visitationwith Austin for several months. Consequently, DCFS petitioned toterminate B.W.'s parental rights to Austin. A finding of unfitness wasentered February 8, 2001. In light of that finding and the putativefather's denial of paternity and consent to Austin's adoption, the courtentered an order on May 18, 2001, holding that it was in Austin's bestinterests to terminate the parental rights of both the mother andputative father. The dispositional order was modified. Austin was toremain a ward of the court and DCFS was to remain the guardian;however, DCFS was now given the power to consent to Austin'sadoption. A permanency hearing was held in June 2001, at which timethe court approved the permanency goal set by DCFS of adoption byAustin's current foster mother, Fontaine. At a subsequent permanencyhearing in December 2001, the same goal was approved by the court.Berkley was present at both of these hearings.
On January 25, 2002, the ALJ issued her written recommendationand opinion. The ALJ ruled that a preponderance of the evidencesupported the indicated finding by DCFS as to allegation No. 2 (skullfracture), allegation No. 9 (bone fracture), and allegation No. 22(substantial risk of physical injury). By letter dated April 4, 2002, theDirector of DCFS notified all interested parties that the decision of theALJ had been adopted as the final administrative decision of theDepartment. The Wards then sought judicial review under theAdministrative Review Act, as provided by statute. 325 ILCS 5/7.16(West 2000).
On March 6, 2002, after the ALJ issued her recommendation, butbefore the Director of DCFS adopted the recommendation as the finaldecision of the Department, Timothy Berkley, who had been Austin'sguardian ad litem since at least November 1999, filed a petition in thecircuit court of Madison County, seeking to modify the January 12,2000, dispositional order which placed Austin in the custody andguardianship of DCFS. Berkley asked that custody and guardianshipof Austin be awarded to Austin's grandfather and stepgrandmother,William and Wendy Ward, and that they be permitted to adopt Austin"without delay."
Hearing on Berkley's motion was taking place when the Directoradopted the ALJ's recommendation. The circuit court of MadisonCounty was made aware of DCFS's final determination on the abusereport. Nevertheless, on May 30, 2002, the court granted Berkley'smotion, terminated DCFS's guardianship of Austin, and placed him inthe custody and guardianship of William and Wendy Ward.
In its written ruling on the motion, the Madison County circuitcourt acknowledged the ALJ's decision, but held that it was notbound by it. Moreover, the court held that the ALJ's decision and thedecision of the Director "are not considered substantive evidence."The Madison County circuit court heard no expert medical testimonyand simply reviewed the medical testimony presented to the ALJ.Despite this fact, the circuit court reached conclusions opposite tothose reached by the ALJ regarding the credibility of the expertmedical witnesses and, contrary to the ALJ, concluded: "In reviewingthe testimony of Dr. Flaherty and Dr. Sullivan, this court does not findthat that evidence, by a preponderance, proves abuse in this matter."
The court was most persuaded by the personal views of theCentral Baptist caseworker, Heather Kocisko, who believed that theWards had not abused Austin. It was shown, however, that Kociskohad not been the Wards' caseworker at the time of Austin's injury andwas unaware of much of the expert medical evidence which formedthe basis of the ALJ's decision.
The Madison County circuit court also found the Wards to be"credible" witnesses, in direct conflict with the findings of the ALJ.The court found the Wards credible, even though the Wards did nottestify under oath before the court, choosing instead to address thecourt in narrative form, and did not make their testimony before theALJ part of the record.
DCFS and Fontaine appealed. The Madison County circuit courtorder modifying the January 12, 2000, dispositional order as toAustin's guardianship was stayed by the appellate court pendingappeal.
On July 28, 2003, the circuit court of Will County issued itsruling on the Wards' appeal from DCFS's administrative decision touphold the indicated finding of abuse against the Wards. The WillCounty circuit court affirmed the administrative decision, ruling thatthe ALJ's factual findings were not against the manifest weight of theevidence and that the ALJ's legal and administrative rulings were notclearly erroneous. The Wards did not appeal this ruling.
On October 17, 2003, the Fifth District of the appellate court, ina Rule 23 order, affirmed the Madison County order terminatingDCFS's guardianship of Austin and placing Austin in the care andcustody of William and Wendy Ward. Without citation to anyauthority, the reviewing court agreed that the ALJ's determinationwas not binding on the circuit court. The appellate court thenconcluded simply that the circuit court's finding that it was in Austin'sbest interests to transfer guardianship was not against the manifestweight of the evidence. It is from this ruling that DCFS and Fontainewere granted leave to appeal to this court. As noted earlier, theirappeals have been consolidated by order of this court.
ANALYSIS
DCFS and Fontaine each raise the following two issues in theirconsolidated appeals before this court: (1) whether, in all cases, achange in circumstances must be proven as a predicate to the best-interests determination whenever modification of a prior dispositionalorder regarding custody is sought pursuant to section 2-28(4) of theJuvenile Court Act of 1987 (the Act) (705 ILCS 405/ 2-28(4) (West2000)), and (2) whether, in the case at bar, the circuit court's decisionto remove Austin from the custody and guardianship of DCFS and toplace him in the custody and guardianship of the Wards was againstthe manifest weight of the evidence. Before addressing these issues,we first examine the Juvenile Court Act (705 ILCS 405/1-1 et seq.(West 2000)).
The Juvenile Court Act is a statutory scheme, created by thelegislature, the purpose of which is to secure for each minor subjectthereto the care and guidance which will best serve the minor's safetyand moral, emotional, mental and physical welfare, and the bestinterests of the community. 705 ILCS 405/1-2 (West 2000). Pursuantto this statutory scheme, once a child has been adjudicated abused,neglected or dependent (705 ILCS 405/2-21 (West 2000)), the courtmust determine whether it is in the best interests of the child to bemade a ward of the court and the "proper disposition best serving thehealth, safety and interests of the minor and the public." 705 ILCS405/2-22(1) (West 2000). Although dispositional orders are generallyconsidered "final" for the purposes of appeal (see In re W.C., 167 Ill.2d 307, 326 (1995)), they are subject to modification in a mannerconsistent with the provisions of section 2-28 of the Act (705 ILCS405/2-23(2) (West 2000)). Subsection (4) of section 2-28 of the Act(705 ILCS 405/2-28(4) (West 2000)) provides:
"The minor or any person interested in the minor mayapply to the court for a change in custody of the minor andthe appointment of a new custodian or guardian of the personor for the restoration of the minor to the custody of hisparents or former guardian or custodian."
In In re S.M., 223 Ill. App. 3d 543, 547 (1992), the court notedthat hearings conducted on petitions for a change in custody aresimply further dispositional hearings, which must be conducted inaccordance with section 2-22(1) of the Act. Thus, "just as the courtat the dispositional hearing conducted under section 2-22(1) of theAct 'shall determine the proper disposition best serving the interestsof the minor and the public,' so should a court, hearing a petition [fora change in custody], 'determine the proper disposition best servingthe interests of the minor and the public.' " In re S.M., 223 Ill. App.3d at 547. Accordingly, once a child has been made a ward of thecourt and a dispositional order has been entered, the court may, at anytime, vacate the original dispositional order and enter any otherdispositional order that it could have entered under section 2-23(a) ofthe Act, thereby effecting a change in the custody and guardianship ofthe minor, if the court finds that to do so would be in the best interestsof the child.
Change of Circumstances
In the case at bar, Fontaine and DCFS maintain that amodification of the dispositional order with regard to custody andguardianship made pursuant to section 2-28(4) of the Act, though notexplicitly, implicitly requires a showing that a change of circumstanceshas occurred as a condition precedent to the best-interests inquiry. Inother words, they contend that, as a predicate to the court's exerciseof its authority to change the custody and guardianship of one of itswards, the court must first make a determination that there has beena change in the attendant circumstances of the case. Moreover, DCFSand Fontaine contend that, where DCFS is the custodial guardian ofthe child, a specific type of "change in circumstances" must be shown,i.e., that DCFS has failed to fulfill its duties under the Act, and that afinding to this effect, based on sufficient proof, must be made beforethe court may remove DCFS as the custodial guardian of the minorward. We disagree.
As Fontaine and DCFS point out, when deciding whether tomodify a dispositional order, courts have generally considered whetherthe modification was "warranted by a change in circumstances." SeeIn re Brandon S., 331 Ill. App. 3d 757, 760 (2002); In re P.P., 261 Ill.App. 3d 598, 605 (1994). In In re D.S., 307 Ill. App. 3d 362, 366(1999), the court, citing to In re P.P., stated, "We believe that whena minor is the ward of a court and under its protection, the above citedprovisions [705 ILCS 405/2-22(1), 2-23(3)(iii) (West 1994)] give thejuvenile court the authority to vacate any dispositional order upon afinding that a change in circumstances has occurred warranting suchan action." Although these cases suggest that a "change ofcircumstances" may be a significant factor in the decision to modifycustody, we do not interpret these cases to mean that the court'sexercise of its statutory authority to modify a dispositional order,particularly with regard to custody, must be predicated on a separatefinding of a "change in circumstances" so that the sufficiency ofevidence with regard to such a finding is reviewable. Rather, thequestion of whether a change in circumstances warrantingmodification of the dispositional order has occurred is a matter whichis subsumed in the "best-interests" inquiry.
It is self-evident that when a person authorized by statute bringsa petition to modify a prior dispositional order regarding the custodyand guardianship of a child who has been made a ward of the court,a dispositional order is already in existence. This means that the courthas previously considered the various kinds of dispositional ordersregarding custody and guardianship which, pursuant to statute, couldbe entered and determined the proper dispositional order best servingthe interests of the ward. 705 ILCS 405/2-23(a) (West 2000). Thus,as a practical matter, a petition to modify the custodial arrangementof a ward of the court will rarely be brought unless a change incircumstances has occurred which the petitioner believes will affectthe "best-interests" inquiry. Consequently, the fact that circumstanceshave not changed significantly would, in the ordinary case, be groundsfor a court to find no cause to disturb its earlier best-interestsdetermination. This does not mean, however, that a finding thatcircumstances have changed is a necessary prerequisite to the court'sexercise of its authority to modify the dispositional order or that thesufficiency of that finding is subject to review. In all cases, it is thehealth, safety and interests of the minor which remains the guidingprinciple when issuing an order of disposition regarding the custodyand guardianship of a minor ward. The best interests of the child is theparamount consideration to which no other takes precedence. See Inre Ashley K., 212 Ill. App. 3d 849, 879 (1991), quoting In re ViolettaB., 210 Ill. App. 3d 521, 533 (1991).
Similarly, we find no support for Fontaine's and DCFS's claimthat, when DCFS has been named the custodial guardian of a minorchild, guardianship may not be terminated unless the court first findsthat DCFS has failed to fulfill its duties under the Act. The cases citedby them for this proposition, In re K.C., 325 Ill. App. 3d 771 (2001),and In re F.B., 206 Ill. App. 3d 140, 156 (1990), are inapposite.
In In re K.C., six children were removed from the custody oftheir parents and, after being adjudicated abused and neglected, placedin the care and custody of DCFS. A permanency hearing was set bythe court to take place two months later, but never occurred.Thereafter, the caseworkers assigned to the matter ignored numerousorders of the court compelling them to complete an administrativereview and to provide the court and the parties with copies of the caseplan. When a permanency review hearing finally took place in July1998, the caseworkers' testimony showed that necessary serviceswere not being provided and DCFS's statutory obligations were notbeing met. As a result, the circuit court directed DCFS to remove theteam of caseworkers it had assigned to the case and ordered DCFS toassign a new team of caseworkers to the matter. On appeal, DCFSargued that the circuit court's order should be reversed because thecourt lacked authority under the Juvenile Court Act to order DCFS toremove and replace caseworkers. Deciding this issue, the reviewingcourt held:
"[W]here DCFS fails to satisfy its statutory obligation toreport, three potential remedies exist: removal of theguardian and the appointment of another (705 ILCS405/2-28(1) (West 1996)), a mandamus action to compel theperformance (705 ILCS 405/2-28(2) (West 1996)), and theinitiation of contempt proceedings (325 ILCS 5/8.3 (West1996)). Before a guardian may be removed or a publicagency compelled to perform its duty, however, the courtfirst must be satisfied by proof that the guardian has notperformed its duty." (Emphasis in original.) In re K.C., 325Ill. App. 3d at 778.
Concluding that DCFS could have been removed because of itsfailure to fulfill its statutory obligations, the reviewing court held thatthe circuit court acted within its statutory authority by requiring DCFSto replace the assigned caseworkers.
In In re F.B., DCFS appealed a contempt order that the juvenilecourt had issued after DCFS had failed to complete a report sought inconnection with a mandamus motion brought by the public guardianof Cook County. On review, the court stated:
"The purpose of section 2-28 is to enable the court, whichhas the ultimate responsibility for the children under itsjurisdiction, to be apprised of the treatment accorded thechildren by their guardians. The Act provides that the courtmay require the guardian to report 'periodically.' " In reF.B., 206 Ill. App. 3d at 155.
The court then concluded:
"Under the Act, therefore, the court, after receiving areport, may retain or relieve the guardian, or it may compela public agency to perform its official duty. In our judgment,it is implicit in the Act that a guardian may not be removed ora public agency compelled to perform an official duty unlessthe court is first satisfied by proof that the guardian has notperformed its duty." (Emphases in original.) In re F.B., 206Ill. App. 3d at 156.
We interpret these cases to stand for the simple proposition that,before the failure to perform statutory duties can form the basis for theremoval of DCFS as guardian or be grounds for compelling DCFS toperform its statutory duty, there must be proof that DCFS has not, infact, fulfilled its statutory obligations.
In the case at bar the GAL did not ask the court to compel DCFSto fulfill its statutory duty, nor did the GAL seek the removal of DCFSas Austin's guardian because DCFS had failed to fulfill its reportingduties or other statutorily required obligations. Rather, the basis forthe GAL's motion was the assertion that Austin's welfare would bebetter served if a change in custody was made and Austin was placedin the care and custody of the maternal grandparents, the Wards. Asa consequence, the court, by deciding that a change in custody waswarranted, exercised its statutory authority to determine thedispositional order which would be in Austin's best interests. Ourreview of this determination does not require us to consider, as aseparate matter, whether a sufficient change in circumstances wasproven or whether DCFS was remiss in its duty. The only questionwhen reviewing the court's decision to change custody is whether itis against the manifest weight of the evidence.
Manifest Weight of the Evidence
The second issue raised by Fontaine and DCFS is whether it wasagainst the manifest weight of the evidence for the circuit court tohave removed Austin from the custody and guardianship of DCFS andto have placed him in the custody and guardianship of the Wards.Before addressing this issue, we consider the standards by which wereview a determination of this sort.
In all guardianship and custody cases, "the issue that singly mustbe decided is the best interest of the child." In re Ashley K., 212 Ill.App. 3d 849, 879 (1991). As the Ashley K. court aptly noted:
"A child's best interest is not part of an equation. It is not tobe balanced against any other interest. In custody cases, achild's best interest is and must remain inviolate andimpregnable from all other factors ***." In re Ashley K., 212Ill. App. 3d at 879.
Recognizing that a best-interests determination is often a difficultone, the legislature has identified various factors that help inform thedecision. These factors are contained in section 1-3(4.05) of theJuvenile Court Act (705 ILCS 405/1-3(4.05) (West 2000)), whichprovides:
"Whenever a 'best interest' determination is required, thefollowing factors shall be considered in the context of thechild's age and developmental needs:
(a) the physical safety and welfare of the child, includingfood, shelter, health, and clothing;
(b) the development of the child's identity;
(c) the child's background and ties, including familial,cultural, and religious;
(d) the child's sense of attachments, including:
(i) where the child actually feels love, attachment, anda sense of being valued (as opposed to where adultsbelieve the child should feel such love, attachment, and asense of being valued);
(ii) the child's sense of security;
(iii) the child's sense of familiarity;
(iv) continuity of affection for the child;
(v) the least disruptive placement alternative for thechild;
(e) the child's wishes and long-term goals;
(f) the child's community ties, including church, school,and friends;
(g) the child's need for permanence which includes thechild's need for stability and continuity of relationships withparent figures and with siblings and other relatives;
(h) the uniqueness of every family and child;
(i) the risks attendant to entering and being in substitutecare; and
(j) the preferences of the persons available to care for thechild."
Other important considerations when deciding a child's bestinterests are "the nature and length of the child's relationship with thepresent caretaker" and the effect that a change of placement wouldhave upon the emotional and psychological well-being of the child. Inre Violetta B., 210 Ill. App. 3d at 534.
While all of the above-cited factors must be considered, no factoris dispositive. Courts must remain ever mindful that "the overridingpurpose of the Act to which all other goals are subordinate is the bestinterest of the child involved." In re J.L., 308 Ill. App. 3d 859, 865(1999), citing In re Beatriz S., 267 Ill. App. 3d 496, 500 (1994). Eventhe superior right of a natural parent must yield unless it is in accordwith the best interests of the child. See People ex rel. Edwards v.Livingston, 42 Ill. 2d 201 (1969); In re A.H., 215 Ill. App. 3d 522(1991); In re Violetta B., 210 Ill. App. 3d at 533. Under certaincircumstances "it is not necessary that the natural parent be foundunfit or be found to have legally forfeited his rights to custody, if it isin the best interest of the child that he be placed in the custody ofsomeone other than the natural parent." People ex rel. Edwards v.Livingston, 42 Ill. 2d at 209. That being so, it follows that a closerelative need not be shown to be unfit if it is in the best interests of thechild that the child be placed in the custody of someone other than therelative. In re Violetta B., 210 Ill. App. 3d at 533 ("if the best interestof the child conflicts with the statutory preference for placement witha close relative, the best interest of the child should control theplacement decision").
When a court is called upon to decide a proper disposition forone of its wards, the court may consider all helpful evidence, even ifthat evidence would not have been competent for purposes of theadjudicatory hearing, and may rely on such evidence to the extent ofits probative value. See In re Perez, 173 Ill. App. 3d 922 (1988). Asto the standard of proof, this court recently held in In re D.T., 212 Ill.2d 347, 366 (2004), that the proper standard of proof applicableduring the best-interests portion of a proceeding to terminate parentalrights is the preponderance of the evidence standard. In the case atbar, the matter before the court was not termination of parental rightsbut, rather, modification of a dispositional order regarding custodyand guardianship. Nevertheless, the same best-interests inquiry isrequired. Therefore, we believe that here, too, the burden of proofmust be the preponderance of the evidence. Thus, it was incumbentupon the GAL to show, and the trial court to find, by a preponderanceof the evidence that placing Austin in the custody and guardianship ofhis grandparents was in Austin's best interests. The best-interestsdetermination is then reviewed under the "manifest weight of theevidence" standard. In re D.T., No. 96229 (October 21, 2004); see Inre Tiffany M., No. 2-04-0668 (December 1, 2004). This is thestandard which this court has always employed, in practice. See In reA.H., 195 Ill. 2d 408, 425 (2001) (wherein the court states that a best-interests determination "will not be disturbed on appeal absent anabuse of discretion or where the judgment is against the manifestweight of the evidence," but reviews the evidence to determinewhether the judgment was against the manifest weight of theevidence); (In re Custody of Sussenbach, 108 Ill. 2d 489, 499 (1985)("It is not for a reviewing court to try the case de novo but merely todetermine whether the trial court's transfer of custody constituted anabuse of discretion. In other words, the question for the reviewingcourt is whether the trial court's decision is contrary to the manifestweight of the evidence"). See also In re P.P., 261 Ill. App. 3d 598,605 (1994) (the court's determination shall not be reversed unless itis against the manifest weight of the evidence); In re S.M., 223 Ill.App. 3d at 547 ("the trial court's exercise of that discretion will notbe reversed unless it is against the manifest weight of the evidence").
The question before us, then, is whether the Madison Countycircuit court's judgment regarding the best interests of Austin issupported by the manifest weight of the evidence. We find that it isnot. Key to this determination is our finding that the Madison Countycircuit court erred when, in reaching its best-interests determination,it relied almost exclusively upon its own finding that the Wards didnot abuse Austin-a finding which it had no authority to make.
In the case at bar, Timothy Berkley, Austin's guardian ad litem,filed a motion in the Madison County circuit court seeking to modifythe court's January 12, 2000, dispositional order. The GAL asked thatAustin be removed from the custody of DCFS and placed in thecustody of his maternal grandfather, William Ward. DCFS andFontaine opposed the motion, arguing that it would not be in Austin'sbest interests to be placed in the custody of the Wards because theywere the subjects of an "indicated" report of abuse involving Austin.DCFS informed the court that Austin had been placed in relativefoster care with the Wards in August 1999, but was removed in March2000, when Austin was nine months old, because it was discoveredthat he had suffered a skull fracture. Subsequent examination revealedthat Austin also had a healing leg fracture. The Wards had noexplanation for how these injuries occurred, despite the fact that, atleast with regard to the skull fracture, it was undisputed that Austinsustained the injury while he was in the Wards' sole and exclusivecare.
DCFS "indicated" the report of abuse against the Wards in lightof all of the evidence, which included the nature of the injuries; themedical reports by Austin's treating physicians; the fact that, at thetime Austin's injuries occurred, Wendy Ward had been takingprescribed antidepressant medication; and the fact that the Wardsadmitted using corporal punishment to discipline nine-month-oldAustin and his three-year-old and five-year-old sisters, even though,as foster parents, they were prohibited from doing so. On appeal, anALJ reviewed DCFS's decision and, based on the testimony of severalwitnesses, including medical experts, ruled that a preponderance of theevidence supported the finding of abuse against the Wards. TheDirector of DCFS adopted the ALJ's opinion.
Heather Kocisko, a Central Baptist caseworker who, at the time,was assigned to Austin's case, supported the motion to changecustody. Kocisko prepared a "best-interests" report, which shepresented to the Madison County circuit court. In this three-pagereport, Kocisko expressed her belief that the Wards should beawarded custody of Austin and be allowed to adopt him. Thisrecommendation was based, almost exclusively, upon a repudiation ofthe ALJ's findings and her personal belief that the Wards had notabused Austin, even though she had no personal knowledge about theWards' treatment of Austin at the time fractures were discoveredbecause she had not been working with the Wards at that time.
The Madison County circuit court, after hearing all of thetestimony, including statements by the Wards and Fontaine, and afterreviewing transcripts of the expert medical testimony heard by theALJ, issued a written decision. The court ruled that it was in Austin'sbest interests to remove DCFS as his custodial guardian and to placehim in the custody of the Wards. In reaching this determination,however, the court ruled, without citation to authority, that it was"not bound" by the findings of the ALJ or the ruling of the Director.(2)The circuit court further held that it did not consider the ALJ'sopinion or the Director's final determination as substantive evidenceor afford these determinations any probative value. Moreover, theMadison County circuit court conducted what amounted to acollateral review of the indicated finding against the Wards. Citing tothe transcripts of the expert medical testimony that were presented tothe ALJ, the Madison County circuit court reached conclusions aboutthe credibility of these witnesses that was directly opposite to thecredibility determinations of the ALJ, who had the benefit of hearingand seeing the witnesses testify. The Madison County circuit courtalso concluded, contrary to the ALJ, that the evidence did not supporta finding by the preponderance of the evidence that the Wards hadabused Austin. In other words, the Madison County circuit courtsubstituted its own findings and conclusions for the ALJ's findings andthe Director's final ruling. We hold this was error.
When a circuit court must decide whether a change in custody isin a child's best interests, the circuit court is "not bound" by anadministrative determination of abuse, but only in the sense that theadministrative determination does not preclude the circuit court fromfinding that the best interests of the child may be served by returningthe child to the custody of the person found to have abused him in thepast. To say that a court is "not bound" by the administrativedetermination does not mean, however, that the court is free to whollyignore the ruling, afford it no probative value, or substitute its ownfindings on the matter after conducting a de novo review of theevidence.
Review of an administrative agency's decision, such as the ALJ'sdetermination here, is available in accordance with the AdministrativeReview Law. 325 ILCS 5/7.16 (West 2000). The AdministrativeReview Law provides in section 3-102, "Article III of this Act shallapply to and govern every action to review judicially a final decisionof any administrative agency where the Act creating or conferringpower on such agency, by express reference, adopts the provisions ofArticle III of this Act or its predecessor, the Administrative ReviewAct. *** In all such cases, any other statutory, equitable or commonlaw mode of review of decisions of administrative agencies heretoforeavailable shall not hereafter be employed." (Emphasis added.) 735ILCS 5/3-102 (West 2000).
In the case at bar, the Wards did not ask the Madison Countycircuit court to review the ALJ's determination. Rather, the Wardssought judicial review of the ALJ's ruling in Will County.(3)Consequently, the Madison County circuit court had no authority toreview the ALJ's determination. 735 ILCS 5/3-104 (West 2000) (thecourt first acquiring jurisdiction of any action to review a finaladministrative decision shall have and retain jurisdiction of the actionuntil final disposition of the action).
The Madison County circuit court acknowledged that it had noauthority to review the ALJ's decision, stating in its written order,"This court notes that it is not in the position to administrativelyreview the decision of DCFS and the Administrative Law Judge underthe Illinois Administrative Review Act, 735 ILCS 5/3-101 et seq.,and, of course does not do so." Despite this assertion to the contrary,the circuit court's written order makes clear that it did, in fact, reviewthe decision.
Furthermore, even if the Madison County circuit court had beenin a position to review the ALJ's decision, it did not do so properly.As this court noted in Lyon v. Department of Children & FamilyServices, 209 Ill. 2d 264 (2004), judicial review of an administrativeagency decision is limited. Courts may not consider evidence outsideof the record of the administrative appeal, reweigh the evidence todetermine where the preponderance lies, or evaluate the credibility ofthe witnesses. 735 ILCS 5/3-110 (West 2002). An administrativeagency's findings of fact are not to be reversed unless they are againstthe manifest weight of the evidence. City of Belvidere v. Illinois StateLabor Relations Board, 181 Ill. 2d 191, 204 (1998). Thus, theMadison County circuit court clearly erred when it reassessed thecredibility of the witnesses who appeared before the ALJ andsubstituted its own determination regarding the indicated reportagainst the Wards for that of the ALJ.
We recognize that the Madison County circuit court, whenconsidering what placement would be in Austin's best interests,unquestionably had a duty to determine the suitability of the Wards toparent Austin. Part of the equation when assessing the Wards'suitability should have been the existence of an indicated report ofabuse against them. The Madison County circuit court did not do this.Moreover, the court considered all of the best-interests factors setforth in section 1-3(4.05) of the Juvenile Court Act in light of itsfinding that the Wards did not abuse Austin and that the findings bythe ALJ and the Director were in error. Under these circumstances,we are compelled to find that the Madison County circuit court'sdetermination as to the best interests of Austin was against themanifest weight of the evidence.
We further note that the circuit court's written order shows thatthe court's skewed focus on whether the Wards had abused Austinprevented it from properly considering whether the circumstances asthey existed at the time of the hearing favored giving custody ofAustin to the Wards.
Evidence before the court showed that, at the time the motion fora change of custody was brought in March 2002, Austin had beenliving with Fontaine for almost two years. Nearly two thirds of his lifehad been spent with Fontaine. Because of the attachments that hadformed, Fontaine wanted to adopt Austin and in an adoption action,her application, by law, would be given preference and firstconsideration. 750 ILCS 50/15.1 (West 2000). Further, as notedearlier in this opinion, once the parental rights of Austin's mother andfather were terminated in May 2001, adoption by Fontaine was thepermanency goal selected for Austin by DCFS in June 2001, andapproved by the court. The circuit court, however, made no mentionof these facts in its best-interests determination.
When reviewing the best-interests factors, the circuit court foundthat Austin was bonded with the Wards and, though placement withthem would be disruptive, he would "quickly adjust." We believe thatthis finding, which was not based on any expert testimony, failed totake into consideration the fact that the Wards' contact with Austinover the two years since his placement with Fontaine had been verylimited. Although Austin had regular visitation with the Wards, theywere supervised visitations, intended primarily to maintain contactbetween Austin and his siblings. Visits took place every other weekfor about two hours. There was no evidence that Austin ever had asingle unsupervised or overnight visit with the Wards since hisremoval from their home.
Furthermore, Fontaine testified that Austin called Wendy Wardthe "mean lady" and displayed regressive and destructive behaviorafter visits with the Wards. His behavioral problems promptedFontaine to seek out professional help and, thus, since December2000, Austin had been seeing a behavioral specialist, whom Fontainehad obtained through Easter Seals. However, neither Kocisko's "best-interests" report, nor any other document submitted to the court,contained anything about this specialist's assessment of Austin or areport of his progress over the time of his treatment.
The record does contain a "Motion to Supplement the Record,"submitted by DCFS to the Madison County circuit court on April 23,2002. According to this motion, Austin was seen in April 2002 by theChild Study Center for a developmental assessment and physicalexamination. Attached to the motion was a report prepared byConstance Blade, a pediatrician, and Cheryl Mroz, a developmentalpsychologist. According to this report, Austin's head circumferencewas "outside the normal range for children of his chronological age,"and Austin had an "asymmetrical red reflex" indicating a possibleretinal (eye) problem that could lead to blindness. It was suggestedthat Austin be evaluated by an ophthalmologist. The developmentalassessment indicated impairment to his auditory memory, visualprocessing, and olfactory processing. The report noted that "all ofthese findings can be related to the previous head injury" andsuggested a neurological follow-up be done. It was also noted thatAustin had sleep and behavioral problems that were exacerbated bychanges in his schedule and environment. There was no testimony atthe hearing regarding this report.
During Fontaine's testimony, she was asked about a recentassessment of Austin. The GAL objected to the line of questioning,arguing that Fontaine should not be allowed to testify about a"bonding assessment" that had been done for the purposes of thehearing. The circuit court sustained the objection. It is unclearwhether it was the Child Study Center report that the GAL objectedto and the circuit court excluded. However, when deciding whethera change in custody would be in Austin's best interests, the courtmade no mention of this report.
CONCLUSION
We find that the Madison County circuit court committed seriouserrors when ruling on the motion to change custody. The court,without authority, rejected an administrative finding that the Wardsabused Austin after conducting a de novo review of the matter. Inaddition, we find that the circuit court failed to give due considerationto matters important to the best-interests determination. For thesereasons, we find that the circuit court's determination that a changeof custody was in Austin's best interests was against the manifestweight of the evidence. We reverse that holding and reinstate DCFSas the custodial guardian with authority to consent to Austin'sadoption.
The judgments of the circuit and appellate courts are reversed.
Reversed.
JUSTICE KARMEIER took no part in the consideration ordecision of this case.
1. It is unclear when Casey began living with the Wards, but the record shows that in February of 1999, Chelsea was placed with the Wards after they expressed an interest in a subsidized adoption of her.
2. On review, the appellate court affirmed the circuit court