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September 16, 1996



Presiding Justice Campbell delivered the opinion of the court: Buckley, J., and Wolfson, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Minor petitioners M.K., E.K., K.J., D.H., A.B., L.G., P.L., B.S. and M.O. appeal an order of the circuit court of Cook County, dismissing their Emergency Supplemental Petition for Findings of Neglect and Abandonment ("Emergency Supplemental Petition"). B.S. and M.O. were not original petitioners, but were included as petitioners by an agreed order dated June 14, 1995. P.L., J.W. and D.B. were original petitioners, but were later stricken as petitioners without objection.

The record on appeal indicates the following facts. On May 17, 1995, the minors, through the Cook County Public Guardian, filed their Emergency Supplemental Petition. The minors alleged they were all wards of the juvenile court placed under the guardianship of Dana Corman, Guardianship Administrator for the Department of Children and Family Services ("DCFS"). The petition alleged that Corman had neglected and abandoned them by allowing them to be kept in psychiatric institutions, despite being advised by the respective hospitals that each of the children were ready for discharge for at least four weeks. The hospitals also allegedly warned Corman that the children were deteriorating and suffering mental and emotional damage from their continued institutionalization. The petition stated that while the petition was brought on behalf of ten minors, "Corman's neglect and abandonment of her wards at psychiatric hospitals [was] a widespread and longstanding practice."

The petition alleged that Corman's acts or omissions violated provisions of the Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 1992)), the Mental Health and Developmental Disabilities Code (405 ILCS 5/1-1 et seq. (West 1992)), the DCFS Enabling Act (20 ILCS 505/1 et seq. (West 1992)), the Illinois Constitution of 1970 and the United States Constitution. The petitioners requested that the trial court enter findings that Corman had neglected and abandoned the petitioners. The petition also sought an order of protection or, in the alternative, an order of mandamus requiring Corman to remove the petitioners from psychiatric hospitals and place them in appropriate settings. Finally, the petition prayed for such further relief as the court deemed just and equitable.

A copy of the Emergency Supplemental Petition was hand-delivered to Corman's counsel on May 17, 1995. A Notice of Emergency Supplemental Petition stated that the petition would be presented on May 23, 1995. The transcript of proceedings for May 23, 1995, indicates that Corman filed a special and limited appearance, arguing that the Emergency Supplemental Petition was in fact a new pleading alleging conduct for which she was entitled to service and an opportunity to respond. Corman also moved to dismiss the petition for failing to state a claim for which relief could be granted. Corman also moved to transfer the cases back to the calendars to which each case had been assigned.

The trial court acknowledged that the Emergency Supplemental Petition was really a new cause of action naming Corman as the respondent. Nevertheless, the trial court stated that it would exercise its discretion to allow all of the cases to remain before the court in a consolidated fashion. The trial court also stated that each case would remain on its old geographic calendar and would be considered consolidated only on the "very narrow" issue of the psychiatric confinement. The trial court further stated that any orders entered that day would be entered without prejudice, as Corman's counsel had filed a special and limited appearance. Corman's motions to dismiss were denied; the trial court ordered the parties to submit affidavits containing the details of the allegations as to each petitioner.

The case was then continued to June 6, 1995, at which time the trial court read the provisions of an agreed order into the record, following an off-the-record conference. The trial court entered a written copy of the agreed order on June 14, 1995. The agreed order required the Director of DCFS to discharge each of the named petitioners from psychiatric hospitalization and place each of them in an appropriate setting other than a shelter by July 21, 1995. The Director of DCFS was ordered to name a representative responsible for responding to and addressing concerns of the Public Guardian relating to the psychiatric hospitalization of DCFS wards who are clients of the Public Guardian by July 6, 1995. The Director of DCFS was ordered to name a representative responsible for notifying hospitals at which such wards are placed of the representative's name and telephone number by August 7, 1995.

On August 7, 1995, the Director also was to submit a protocol for addressing "systemic issues affecting DCFS wards at hospitals," including that: (1) DCFS receive notice of discharge and staffing dates; (2) DCFS attend staffing meetings at psychiatric hospitals; (3) DCFS be able to ascertain discharge dates and respond in a timely manner; (4) when appropriate placement exists out-of-state and not in Illinois, that wards will not remain hospitalized while in-state possibilities are exhausted; (5) DCFS wards are promptly discharged to appropriate placements once clinically ready for discharge; and (6) DCFS promptly address requests for consent to treatment for DCFS wards in psychiatric hospitals. The agreed order further provided that nothing in the protocol shall conflict with the consent decree entered in B.H. v. McDonald, Slip op., No. 88 C 5599, in the federal district court for the Northern District of Illinois, which was signed on December 21, 1991. The order further stated that the protocol was to be developed with input from the Public Guardian.

The agreed order also provided that the trial court would retain jurisdiction over the matter. In addition, the matter was continued to August 1, 1995, for a DCFS report on the issues listed in the order. Finally, the agreed order continued Corman's special and limited appearance.

The record indicates that the hearing was later continued to August 8, 1995.

On August 1, 1995, Corman's counsel submitted a report on the status of the nine minors listed in the agreed order. Although not required to do so, the petitioners submitted a report the same day. The petitioners' report states that with two exceptions, the petitioners were removed from hospitalization and placed in less restrictive settings by the July 21, 1995, deadline specified in the agreed order. The petitioners' report also states that the Public Guardian agreed to an extension of time as to the remaining minors, who were placed by DCFS on July 24 and 25, 1995. The petitioners then reported on 16 additional minors who were alleged to remain hospitalized past their discharge dates. The Public Guardian did not move to add these minors as parties to the litigation.

The parties agree that Corman filed a proposed protocol on August 8, 1995; however, neither party has identified where this protocol appears in the record. On August 28, 1995, petitioners' filed their "Objections to the DCFS Director's Proposed Protocol," which refers to a separate motion to have the juvenile court adopt a protocol submitted by petitioners on August 1, 1995, or for an ...

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