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June 30, 1994


Appeal from the Circuit Court of Cook County. Honorable Robert M. Smierciak, Judge Presiding.

Rehearing Denied August 3, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Cahill, Hoffman, Johnson

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

This is an interlocutory appeal from a juvenile court finding that a document prepared by the Department of Children and Family Services ("DCFS") in connection with the death of K.S., a ward of the court, was not privileged and would be disseminated to the parties. We hold that the court was without jurisdiction when the order was entered and remand with directions that the underlying action be dismissed.

The court removed K.S. from the custody of his mother in October of 1990 because of her chronic drug abuse and her failure to provide adequate food and care to K.S. The court placed K.S. with Gary T. Morgan, the guardianship administrator of DCFS. On March 5, 1991, DCFS placed K.S. in the foster home of Michael and Denise Collins. On March 30, 1991, Michael Collins brought K.S. to a hospital because of a head injury. Collins claimed his daughter was changingK.S.'s diaper when K.S. became agitated. He threw his head back and hit the bathroom tub. When K.S. arrived at the hospital he was vomiting, bleeding, and in cardiac arrest. K.S. died the next day.

The public guardian filed a motion on September 16, 1991, for a report of the guardian under the Juvenile Court Act (Ill. Rev. Stat. 1991, ch. 37, par. 802-28(1)). On December 3, 1991, the trial court ordered DCFS to disclose the names of children currently placed in the foster home where K.S. was injured. On January 14, 1992, DCFS reported the names of all foster children placed in the Collins' home.

The court heard argument on the motion for a report of the guardian on May 18, 1992. The court granted the motion. On June 18, 1992, DCFS moved the court to reconsider its order for a report of the guardian. The court denied the motion to reconsider on November 24, 1992, and ordered Morgan to appear in court on December 11, 1992, to report on the death of K.S. The court also ordered: "All documents in possession of the Illinois DCFS regarding the death of * * * [K.S.], the appropriateness of the foster home in which he died, and the investigation of this death shall be brought to Court by Gary T. Morgan on December 11, 1992 at 1:30 p.m. for inspection by the Court."

On December 15, 1992, Morgan testified about K.S.'S death and DCFS's response. DCFS tendered to the court approximately 253 pages of documents relevant to K.S.'s death. On January 28, 1993, counsel for DCFS informed the court of the status of DCFS's investigation. Counsel informed the court of a document prepared under a federal consent decree entered in the case of B.H. v. Suter, No. 88 C 5599 (N.D. Ill. December 20, 1991), which required DCFS's Bureau of Quality Assurance to conduct an administrative review of the death of a child in substitute care. Although DCFS was willing to tender the Administrative Review Team ("ART") report for in camera review, they contended that the document was protected by the executive and self-critical analysis privileges and so unavailable to the parties. The court agreed to return the document to counsel for DCFS after in camera review.

On February 24, 1993, DCFS produced additional documents in the investigation of K.S.'s death. DCFS also gave the Judge the ART report. While the Judge held the report, DCFS filed a motion for non-disclosure of a privileged document. On April 29, 1993, the court heard argument. On May 20, 1993, the court ruled that it would immediately disclose the ART report to the public guardian, public defender, and the State's Attorney. DCFS filed a notice of appeal and moved for a stay of the order. We granted DCFS's motion for a stay pending further order of our court.

Although the parties have framed the issue on appeal in terms of privilege, the threshold issue is the jurisdiction of the juvenile court to enter any order concerning a ward of the court after the ward dies. Because we find that the juvenile court lost jurisdiction when K.S. died, we need not reach the privilege issue.

The circuit courts have jurisdiction over all justiciable matters. (Ill. Const. 1970, art. VI, sect. 9.) The legislature has no authority to limit the jurisidiction of the courts over justiciable matters which existed at common law. ( De King v. Urban Investment and Development Corp. (1987), 155 Ill. App. 3d 594, 508 N.E.2d 377, 108 Ill. Dec. 216.) However, the legislature has the power to create a justiciable matter -- and thereby expand the jurisdiction of the circuit court -- by passing a statute which creates rights and duties which did not exist at common law or in equity. ( In re M.M. (1993), 156 Ill. 2d 53, 619 N.E.2d 702, 189 Ill. Dec. 1.) These special statutes define the limits of the newly created justiciable matter and in effect limit the authority of the circuit court. Board of Education of Warren Township High School Dist. 121 v. Warren Township High School Federation of Teachers, Local 504 (1989), 128 Ill. 2d 155, 538 N.E.2d 524, 131 Ill. Dec. 149.

In In re M.M. (1993), 156 Ill. 2d 53, 619 N.E.2d 702, 189 Ill. Dec. 1, our supreme court considered whether the juvenile court had authority to condition a court-appointed guardian's power to consent to adoption. In answering no, the court said that juvenile court cases were "special statutory proceedings" in which the court could exercise no power not specifically given in the Juvenile Court Act. ( In re. M.M., 156 Ill. 2d at 65-67, citing In re Sneed (1977), 48 Ill. App. 3d 364, 363 N.E.2d 37, 6 Ill. Dec. 508, aff'd (1978), 72 Ill. 2d 326, 381 N.E.2d 272, 21 Ill. Dec. 194.) The court reasoned that because the circuit court did not have the power at common law, and the Juvenile Court Act did not grant the authority, the juvenile court lacked jurisdiction to do so. In re M.M., 156 Ill. 2d at 64-67.

In In re Ardedia L. (1993), 249 Ill. App. 3d 35, 618 N.E.2d 804, 188 Ill. Dec. 234, the appellate court considered whether the juvenile court could order DCFS to provide day care services for six months beyond the twenty-first birthday of a ward. The court noted that all juvenile proceedings end on the ward's twenty-first birthday. ( In re Ardedia L., 249 Ill. App. 3d at 39, citing Ill. Rev. Stat. 1991, ch. 37, par. 802-31.) The court concluded that in the absence of a specific grant of authority in the Juvenile Court Act, ...

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