APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
542 N.E.2d 754, 186 Ill. App. 3d 592, 134 Ill. Dec. 408 1989.IL.1074
Appeal from the Circuit Court of Cook County; the Hon. Arthur N. Hamilton, Judge, presiding.
PRESIDING JUSTICE JIGANTI delivered the opinion of the court. JOHNSON and LINN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI
Gary T. Morgan, the guardianship administrator of the Department of Children and Family Services (DCFS administrator), appeals from an order of the circuit court of Cook County, juvenile division, which limited his authority as guardian of the person of Tarrie Lehmann. Specifically, the order precludes the DCFS administrator from representing Tarrie Lehmann in a Federal lawsuit brought by the estate of his deceased sister, Tameka Lehmann, against DCFS employees. In entering the order, the trial court made findings of fact which form the basis of this appeal. The DCFS administrator contends that the juvenile division abused its discretion in exercising jurisdiction over this matter because certain of the issues were already pending before the probate division and in Federal court. He also maintains that the court acted improperly in deciding issues of fact not raised in the pleadings.
In November 1978, the State filed a petition for adjudication of wardship in the juvenile division of the circuit court alleging that Tarrie Lehmann and his sister Tameka Lehmann had been neglected by their parents. The court entered a finding of neglect and placed the children in the custody of the DCFS. On April 11, 1984, the court terminated the parental rights of the children's biological parents and appointed the DCFS administrator as personal guardian with the right to consent to adoption. In March 1987, Patrick Murphy, the public guardian of Cook County (public guardian), was appointed as attorney and guardian ad litem for Tarrie and Tameka Lehmann.
On March 25, 1987, a supplemental petition was filed asking the court to authorize the transfer of Tarrie and Tameka Lehmann to their foster parents' new home in North Carolina. At a hearing on the petition, representatives of the DCFS stated that the Interstate Compact on the Placement of Children (Interstate Compact) *fn1 had been approved and that services for the children "were being set up" in North Carolina. In reliance on these representations, the public guardian recommended the transfer. In fact, however, the Interstate Compact had not been approved and no services were in place for the children when they reached North Carolina. Subsequently, both children suffered abuse by their foster parents which resulted in the death of Tameka Lehmann.
The public guardian then filed a petition in the probate division of the circuit court asking to be appointed independent administrator of the estate of Tameka Lehmann. The petition was granted, and on September 21, 1987, the public guardian filed a complaint in Federal court on behalf of Tameka's estate and as next friend and guardian ad litem of Tarrie Lehmann. The complaint named several DCFS employees as defendants and alleged violation of the children's constitutional rights, assault and battery, negligence and negligent entrustment.
On February 5, 1988, the DCFS administrator filed a petition in the probate division seeking to vacate the order appointing the public guardian administrator of the estate of Tameka Lehmann. The petition alleged in part that the public guardian had a conflict of interest arising from his participation in the proceedings which resulted in the transfer of the children to North Carolina. The public guardian moved to dismiss this petition. The DCFS administrator also filed a motion in Federal court seeking to remove the public guardian as the next friend of Tarrie Lehmann based on the asserted conflict of interest.
On March 1, 1988, the public guardian filed a motion in the juvenile division asking the court to limit the guardianship authority of the DCFS administrator. The motion alleged that Illinois law provides that a personal guardian has authority to represent the minor in legal actions "except as otherwise provided by order of court." (Ill. Rev. Stat. 1987, ch. 37, pars. 802-27(3), 801-3(9)(a).) The motion then asked the court to restrict the guardianship authority of the DCFS administrator "so that said authority does not include the authority to represent Tarrie Lehmann in matters relating to the estate of Tameka Lehmann or represent Tarrie Lehmann in any action in which DCFS or DCFS employees are named as defendants." Following a hearing on the motion, the court entered an order stating as follows:
"IT IS HEREBY ORDERED that the authority of [the DCFS administrator] is hereby limited, as follows: The Department of Children and Family Services and its guardianship administrator, Gary T. Morgan, shall have no authority from this court to represent Tarrie Lehmann with respect to the estate of Tameka Lehmann or with respect to any action filed in federal court naming DCFS employees as defendants."
Prior to entering this order, the court made several findings of fact, including that the public guardian was not negligent in relying upon representations of DCFS employees that the Interstate Compact had been approved and a finding that there existed no conflict of interest in the public guardian's representation of Tarrie Lehmann and the estate of Tameka Lehmann. It is apparently these findings of fact which prompted the instant appeal.
The DCFS administrator first contends that the juvenile division of the circuit court erred in entertaining the public guardian's motion to limit the authority of the DCFS administrator because the motion raised issues already pending in the probate division and the Federal court. To support this contention, he has cited cases stating the proposition that "[w]here two actions between the same parties, on the same subject, and to test the same rights, are brought in different Illinois courts having concurrent jurisdiction, the court first acquiring jurisdiction retains it and may dispose of the entire controversy, to the exclusion of coordinate courts." Kanter & Eisenberg v. Madison Associates (1986), 144 Ill. App. 3d 588, 591-92, 494 ...