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01/20/95 LAWRENCE M. CHRISTIAN M. CHRISTOPHER M.

January 20, 1995

IN THE INTEREST OF: LAWRENCE M., CHRISTIAN M., CHRISTOPHER M., AND CARMON M., MINORS, (ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND GARY T. MORGAN, GUARDIANSHIP ADMINISTRATOR, DEFENDANTS-APPELLANTS.) -- IN THE INTEREST OF: ALESHA AND ANGELA Y., MINORS, (ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND CARLTON WILLIAMS, DEFENDANTS-APPELLANTS.) -- IN THE INTEREST OF: ADRIAN R., AJA R., AND ADAM R., MINORS, (ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND GARY T. MORGAN, GUARDIANSHIP ADMINISTRATOR, DEFENDANTS-APPELLANTS.) -- IN RE CIERRA B., BERNARDO C., BENNY C., ROSEMARY C., ROBERT C., NARIUS C., AND SHENEKA H., MINORS, (ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, DEFENDANT-APPELLANT.) -- IN RE THE INTEREST OF: LORENZO M., PANS C., PRECIOUS M., DONALD C., LAZERICK C., AND LAWRENCE C., MINORS, (ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, DEFENDANT-APPELLANT.) -- IN THE INTEREST OF CONSUELO M., A MINOR, (ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, DEFENDANT-APPELLANT.)


Appeal from the Circuit Court of Cook County. Honorable Gary L. Brownfield, Judge Presiding. Honorable Gary L. Brownfield, Judge Presiding. Honorable Allen S. Goldberg, Judge Presiding. Honorable Gary L. Brownfield, Julia Q. Dempsey, Allen S. Goldberg, Judges, Presiding. Honorable Gary L. Brownfield, Judge Presiding. Honorable Ann Houser, Judge Presiding.

The Honorable Justice McNULTY delivered the opinion of the court: Cousins, P.j. and Gordon, J., concur.

The opinion of the court was delivered by: Mcnulty

The Honorable Justice McNULTY delivered the opinion of the court:

This case involves nine consolidated interlocutory appeals by the Department of Children and Family Services (DCFS) from juvenile court orders requiring DCFS to provide and pay for in-patient drug treatment services for mothers whose children were removed from their custody due to the mothers' drug related neglect of them. We affirm all of the trial court orders except the two concerning Lawrence M., Christian M., Christopher M., and Carmon M., appeal numbers 93-3113 and 93-4050, which we reverse.

DCFS asserts on appeal that the juvenile court orders directing DCFS to pay for drug treatment services to the parents of minors before the court are barred by the doctrine of sovereign immunity and violate the doctrine of separation of powers. DCFS also argues that the Juvenile Court Act (Act) does not authorize DCFS to provide and pay for in-patient drug treatment services for parents of minors. The scope of review in an interlocutory appeal is limited to a determination of whether the court abused its discretion in granting the interlocutory relief. (Kellerman v. MCI Telecommunications Corp. (1985), 134 Ill. App. 3d 71, 479 N.E.2d 1057, 89 Ill. Dec. 51.) As to all but one of these orders, the trial courts acted within their discretion when they ordered DCFS to pay for in-patient drug treatment which was in the best interest of the children and essential to the reunification of the children with their mothers.

We agree with the parties that this case is not moot because it falls within an exception to the mootness doctrine. Although the orders at issue have already been complied with, we nonetheless consider the issues raised by the orders since they are capable of repetition, yet evading review. See In re A Minor (1989), 127 Ill. 2d 247, 537 N.E.2d 292, 130 Ill. Dec. 225.

DCFS first claims that the juvenile court orders directing DCFS to provide any pay for in-patient treatment services to the mothers of minors violates the doctrine of sovereign immunity. DCFS claims that the orders entered a money judgment against the State, thereby vesting the court of claims, and not the juvenile court with jurisdiction to enter the orders. In determining whether an action is brought against the State, the court is not bound by the formal identification of the parties, but rather, must examine the issues involved and the nature of the relief sought. (Children's Memorial Hospital v. Mueller (1986), 141 Ill. App. 3d 951, 491 N.E.2d 103, 96 Ill. Dec. 289.) A claim that will potentially subject the State to liability is a claim against the State and within the exclusive jurisdiction of the Illinois Court of Claims. (Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 481 N.E.2d 1004, 90 Ill. Dec. 204.) A suit against State officials seeking to compel them to perform their duty is not a suit against the State. In re V.H. (1990), 197 Ill. App. 3d 52, 554 N.E.2d 686, 143 Ill. Dec. 751.

We do not find that the juvenile court orders at issue here were barred by the doctrine of sovereign immunity. DCFS, in several of its appellate briefs filed in this case, names Gary T. Morgan, guardian administrator, as an appellant in the case. Furthermore, one of DCFS' briefs names as an appellant DCFS administrator Carlton Williams. Even in those cases naming only DCFS, Gary T. Morgan is the temporary custodian of the minors and the orders are essentially orders directing DCFS administrators to provide mandated services. As such, these orders compel administrators to perform their duty and are not suits against the State.

Furthermore, we are not persuaded by Children's Memorial Hospital v. Mueller (1986), 141 Ill. App. 3d 951, 491 N.E.2d 103, 96 Ill. Dec. 289, relied upon by DCFS in support of its sovereign immunity argument. In Mueller, the hospital sued the parents of minor children to recover charges for services rendered to the minors. The parents filed a third party complaint seeking indemnification from DCFS for any judgment entered against them, since DCFS was the legal guardian of the children at the time the services were rendered. The hospital then amended its complaint naming DCFS as a defendant. The court found that it was the court of claims, and not the circuit court, who had jurisdiction over the claims brought against DCFS.

Mueller is essentially a debt collection case, with the parents and hospital seeking reimbursement from DCFS after the services had already been rendered. In the instant case, the orders directing DCFS to pay for short term in-patient drug treatment were entered before any services were rendered. Moreover, the orders entered here were of a temporary nature, necessitated by a situation requiring urgent attention. We are therefore more persuaded by In re V. H. (1990), 197 Ill. App. 3d 52, 554 N.E.2d 686, 143 Ill. Dec. 751, wherein the court found that an injunction which required DCFS to pay for certain children to remain in a residential placement in Arkansas did not violate sovereign immunity. The minors in V.H. sought a preliminary injunction when the guardian administrator sought to remove the minors from a residential treatment facility. The circuit court entered an order enjoining the administrator from removing the children from the residential placement and ordered the administrator of DCFS to make arrangements for the payment of such treatment until an assessment of the situation could be made. The orders here, like those in V.H., were interim orders. Because the DCFS administrator in V.H. sought to remove the children from residential placement, but developed no plan for taking care of the children once they were removed, it was appropriate for the court to order DCFS to pay for the children to remain in the residential placement until an alternative plan for the children's care was made.

In VH, DCFS agreed to the residential placement and admitted that it would ultimately be responsible for paying for such treatment. In the instant case, DCFS does not dispute the need for in-patient drug treatment, but simply claims that it should not be required to pay for such treatment. DCFS failed, however, in all but one case, to develop an alternative treatment plan. DCFS prepared no case plan, never asked the court for time to prepare a case plan and never suggested that in-patient treatment was inappropriate. In at least one case, the trial court made two findings that DCFS had failed to make reasonable efforts to unite the family. In fact, DCFS had failed to even assign a caseworker to the case. The court therefore had a right to enter an interim order for the payment of in-patient treatment, pending DCFS' development of a case plan.

The Juvenile Court Act authorizes the court to enter orders related to temporary custody, including "the provision of services to the minor or his family * * * ." (Emphasis added) (705 ILCS 405/2-10 (2)(West 1992).). The policy of the Act is to preserve and strengthen the minor's family ties, removing the minor from the family only when there is no other way to protect the minor's welfare or safety. (705 ILCS 405/2-10(1),(2)(West 1992),) The Juvenile Court Act provides that as part of the temporary custody proceedings, "the court shall require documentation by representatives of the Department of Children and Family Services as to the reasonable efforts that were made to prevent or eliminate the necessity of removal of the minor from his or her home * * * ." 705 ILCS 405/2-10(2)(West 1992).

The trial court orders were entered only after finding that DCFS had not made reasonable efforts to reunite the family pursuant to the Juvenile Court Act. The courts recognized the need to immediately place the mothers in in-patient drug treatment programs since at the time the children were removed from the home, the mothers were most motivated to cooperate in order to get their children back. The circuit courts recognized that these orders would greatly enhance the opportunity for the children to be reunited with their families. Since DCFS recognized the need for the in-patient treatment, yet refused to pay for such treatment or come up with an alternative treatment plan or method of payment, the mothers and their children were placed in limbo. The court properly recognized that it needed to act quickly in order to increase the chances of family reunification.

The trial courts stated that the mothers would be given only one opportunity to successfully complete the in-patient drug treatment programs. If the mothers successfully completed the programs, the family would be reunited, saving State money that would have been spent on foster care. If the mothers did not successfully complete the program, DCFS would not again be required to pay for the mothers' in-patient drug rehabilitation. The trial courts did not impose a long term obligation on DCFS, but rather ordered a short term plan that could save the State significant sums that would have to be paid in foster care if the mothers remained drug addicted and the family could ...


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