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04/16/96 CHIARA C. v. DEPARTMENT CHILDREN AND

April 16, 1996

IN RE CHIARA C., A MINOR (CHIARA C., PETITIONER-APPELLEE
v.
THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Cook County. No. 90 J 19428. The Honorable Marsha Hayes, Judge Presiding.

As Corrected April 30, 1996. As Modified on Denial of Rehearing May 28, 1996.

The Honorable Justice DiVITO delivered the opinion of the court: Hartman, P.j., and Burke, J., concur.

The opinion of the court was delivered by: Divito

MODIFIED ON DENIAL OF REHEARING

The Honorable Justice DiVITO delivered the opinion of the court:

The issue presented by this appeal is whether the circuit court has subject matter jurisdiction to order the Department of Children and Family Services (DCFS), as the legal guardian and custodian of a minor, to place that minor in a specific residential facility. For reasons that follow, we conclude that it does not.

Chiara C. (Chiara) was born in 1983. In April 1991, following a finding of maternal neglect, she and her younger brother, Richard N., were placed in the custody of DCFS. At that time, their father, who has since been released, was in prison. During the next two years, Chiara and her brother were placed with a series of caretakers, including an aunt and uncle, their step-grandmother, and briefly, their mother. In September 1993, Chiara, who had earlier been subject to two discrete instances of sexual abuse, and her brother were placed in the foster care of a maternal aunt. According to her fifth-grade teacher at Wildwood School, who described the school as one of the best in the city, Chiara exhibited no behavioral problems and received A's and B's.

The instant action was initiated by an April 1995 emergency motion to change placement, filed by Chiara through her guardian ad litem, the public guardian of Cook County. In the motion, Chiara requested that the circuit court order DCFS to place her in Girls Hope, a licensed residential facility for college-bound students which provides clothing, medical care, counselling, and high school and college tuition. Chiara, who had been preliminarily accepted by Girls Hope, requested the placement because of her desire to achieve academically and to live in a stable environment. DCFS objected to the placement. Its grounds for doing so were that its current policy was to place children in the least restrictive setting, keeping siblings together whenever possible; Chiara's placement with her brother andher aunt was currently stable; DCFS would provide Chiara's college tuition and other special needs; and minors have difficulty returning to a residential setting after being placed in an institutional one.

The record is ambiguous as to whether DCFS is obligated to pay for Chiara's tuition at Girls Hope. When the circuit court asked who pays the tuition there, an unidentified speaker responded, "private funding, except for three DCFS students. *** If DCFS funding were available [for Chiara], we would appreciate it." DCFS has placed other minors in the Girls Hope affiliate, Boys Hope.

Finding no "rational reason why DCFS is opposing a child who has been through everything this child has been through to try to make it in life," the circuit court ordered DCFS to immediately prepare and send an admissions packet to Girls Hope so that the admission process for Chiara could be completed. DCFS did so but filed a notice of appeal from that order. Later, the circuit court expressly ordered DCFS to immediately change the placement of Chiara to Girls Hope and it denied a stay pending appeal. DCFS complied with that order, placed Chiara at Girls Hope, and filed another notice of appeal. The two appeals have been consolidated.

DCFS contends that the circuit court lacked subject matter jurisdiction to order it to place Chiara in Girls Hope because that placement was a specific service, which the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/1-1 et seq. (West 1994)) does not authorize the court to order. Chiara responds that the Act was not violated because the orders simply directed her "placement" and did not require DCFS to order "specific services." As a threshold matter, therefore, we must characterize the circuit court's orders regarding Girls Hope.

The Act states that it is the responsibility of a legal custodian to provide education. 705 ILCS 405/1-3(9) (West 1994). Where DCFS is that custodian, it sets a goal for permanent custodial placement of the minor. 705 ILCS 405/1-3(11.1) (West 1994). Services intended to help the minor achieve that goal are outlined in a service plan. 89 Ill. Adm. Code § 305.50 (1994). That plan must include, inter alia, "a description of the educational program/services the child is receiving or needs to receive" and a determination of "who will provide the services." 89 Ill. Adm. Code §§ 305.50(b)(6), (b)(7) (1994).

Here, DCFS set family reunification as a permanency goal for Chiara. Part of her service plan included a "Scholastic Summary" section, which provided the name of the school and the type of program to be attended. Notwithstanding Chiara's attempts to construe the court's orders regarding Girls Hope as simply orders of "placement," they are essentially orders to change the service plan by ordering specific residential and educational services.

We turn to the merits of DCFS' subject matter jurisdiction argument. "Subject matter jurisdiction refers to the power of the court to adjudge concerning the general question involved [citation], as well as the power to grant the particular relief requested [citations]. Every act of the court beyond that power is ...


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