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06/07/96 C.T. v. C.T.

June 7, 1996

IN RE C.T., A MINOR (DANA L. CORMAN, GUARDIANSHIP ADM'R OF THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PETITIONER-APPELLANT,
v.
C.T., RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Du Page County. Nos. 93-J-122, 93-J-290, 93-J-415, 93-J-448, 94-J-617, 95-J-1113. Honorable Robert J. Anderson, Judge, Presiding.

Released for Publication July 8, 1996.

The Honorable Justice Geiger delivered the opinion of the court: Bowman and Thomas, JJ., concur.

The opinion of the court was delivered by: Geiger

The Honorable Justice GEIGER delivered the opinion of the court:

The petitioner, Dana L. Corman, Guardianship Administrator of the Department of Children and Family Services (DCFS), appeals from the order of the circuit court of Du Page County appointing DCFS the guardian of the minor, C.T., following his adjudication as a neglected and dependent minor under sections 2--3(1)(a) and 2--4(1)(a) of the Juvenile Court Act of 1987 (the Juvenile Court Act) (705 ILCS Ann. 405/2--3(1)(a), 2--4(1)(a) (Smith-Hurd Supp. 1996)). In addition, DCFS appeals the circuit court's order, entered on a second dependency petition, placing the minor in temporary shelter care with DCFS pursuant to section 2--10 of the Juvenile Court Act (705 ILCS Ann. 405/2--10 (Smith-Hurd Supp. 1996)). At issue on appeal is whether the recent amendments to the Juvenile Court Act (705 ILCS Ann. 405/2--10(2), 2--27(1)(d) (Smith-Hurd Supp. 1996)) and the Children and Family Services Act (20 ILCS Ann. 505/5(1) (Smith-Hurd Supp. 1996)), preclude a court from placing a dependent minor aged 13 or over in the custody of DCFS if that minor has ever been adjudicated delinquent under article V of the Juvenile Court Act (705 ILCS 405/5--1 et seq. (West 1994)). We reverse and remand.

The minor was born on April 12, 1978. He was adjudicated delinquent on June 8, 1993, on four separate delinquency petitions. Following his admission to one count of criminal damage to property, nine counts of theft, and four counts of burglary, as set forth in the 1993 petitions, the minor was sentenced to three years' probation. In addition, on the recommendation of the Du Page County probation department, the court ordered the minor committed to the Department of Corrections (DOC). His commitment to the DOC was stayed, however, due to his placement in a residential treatment program. On May 24, 1994, the minor was unsuccessfully discharged from his residential placement and ultimately discharged to the custody of the DOC.

On September 8, 1994, the trial court extended the minor's probation to April 18, 1998, releasing him to the custody of his maternal uncle. The court further ordered DCFS to provide, and the minor to cooperate with, substance abuse treatment and counseling. The court also set a status date for a check on service of the minor's parents by publication as to a fifth petition, filed on June 8, 1994, which sought to have the minor adjudicated neglected or dependent pursuant to sections 2--3(1)(a) and 2--4(1)(a) of the Juvenile Court Act. Subsequent orders continued the case for a dispositional hearing on the neglect or dependency petition.

A second dependency petition was filed on August 1, 1995. On August 9, 1995, following a hearing, the court entered orders on both the 1994 neglect or dependency petition and the 1995 dependency petition. In an order entitled "Dispositional Order," the court adjudicated the minor both neglected and dependent on the 1994 petition and appointed DCFS as guardian. In addition, in an order entitled "Order for Temporary Shelter Care," the court found probable cause to believe that C.T. was a dependent minor under section 2--4 of the Juvenile Court Act, and that it was a matter of immediate and urgent necessity that the minor be placed in shelter care for his own protection. Accordingly, the court placed the minor in the temporary custody of DCFS on the 1995 petition as well. This appeal followed.

The amendments at issue on appeal, all of which arose out of the same legislation, relate both to the Children and Family Services Act and the Juvenile Court Act. See Pub. Act. 89--21, Art. 5, § 5--15, eff. June 6, 1995 (amending 20 ILCS 505/5 (West 1994)); Pub. Act. 89--21, Art. 15, § 15--15, eff. July 1, 1995 (amending 705 ILCS 405/2--10, 2--27 (West 1994)). Section 505/5(k) of the Children and Family Services Act, which sets forth the direct child welfare services to be provided by DCFS, provides that DCFS "shall accept for care and training any child who has been adjudicated neglected or abused, or dependent committed to it pursuant to the Juvenile Court Act or the Juvenile Court Act of 1987." 20 ILCS Ann. 505/5(k) (Smith-Hurd Supp. 1996). Under the newly-amended section 505/5(1), however, "a minor charged with a criminal offense under the Criminal Code of 1961 [720 ILCS 5/1--1 et seq. (West 1994)] or adjudicated delinquent shall not be placed in the custody of or committed to by any court, except a minor less than 13 years of age committed to under Section 5--23 of the Juvenile Court Act of 1987." 20 ILCS Ann. 505/5(1) (Smith-Hurd Supp. 1996).

The portions of article II of the Juvenile Court Act relating to the temporary and final commitment of abused, neglected, or dependent minors were also amended to include similar language. For example, section 2--10(2) of the Juvenile Court Act, which applies to temporary custody hearings, now provides, in pertinent part:

"If the court finds that there is probable cause to believe that the minor is abused, neglected or dependent, the court shall state in writing the factual basis supporting its finding and the minor, his or her parent, guardian, custodian and other persons able to give relevant testimony shall be examined before the court. *** If it is in the best interests of the minor, the court may also prescribe shelter care and order that the minor be kept in a suitable place designated by the court or in a shelter care facility designated by or a licensed child welfare agency; however, a minor charged with a criminal offense under the Criminal Code of 1961 or adjudicated delinquent shall not be placed in the custody of or committed to by any court, except a minor less than 13 years of age and committed to under Section 5--23 of this Act. " (Emphasis added.) 705 ILCS Ann. 405/2--10(2) (Smith-Hurd Supp. 1996).

Likewise, section 2--27 of the Juvenile Court Act, which sets forth the trial court's options for the placement of an abused, neglected, or dependent minor, provides, in pertinent part:

§ 2--27. Placement; legal custody or guardianship.

(1) If the court determines and puts in writing the factual basis supporting the determination of whether the parents, guardian, or legal custodian of a minor adjudged a ward of the court are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor or are unwilling to do so, and that it is in the best interest of the minor to take him from ...


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