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11/01/96 RAMI M. v. ILLINOIS DEPARTMENT CHILDREN

November 1, 1996

IN RE THE INTEREST OF: RAMI M., MINOR-APPELLEE,
v.
ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLANT.



Appeal from the Circuit Court of Cook County. No. 90 J 13509. Honorable Lester Bonaguro, Judge Presiding.

Rehearing Denied December 17, 1996. Released for Publication December 22, 1996.

The Honorable Justice Hourihane delivered the opinion of the court. MC Nulty, P.j., and Cousins, J., concur.

The opinion of the court was delivered by: Hourihane

JUSTICE HOURIHANE delivered the opinion of the court:

This case involves an interlocutory appeal by the Department of Children and Family Services (DCFS) from an order of the juvenile court which directed DCFS to continue to pay for costly in-home services provided to a minor and his family subsequent to family reunification. We are asked to decide whether the circuit court has the authority under the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1 et seq. (West 1994)) to enter orders requiring DCFS to continue paying for services being provided to a minor and his family after DCFS has been removed as the custodial party. For the reasons stated below, we vacate the order of the circuit court and remand this cause for further proceedings.

BACKGROUND

The minor, Rami M., was born on May 26, 1982. Joyce M., the minor's mother, suffers from a physical disability and has experienced difficulties controlling Rami's violent behavior. On July 23, 1990, pursuant to his mother's request, DCFS took temporary custody of Rami. DCFS thereafter provided services to Rami and his family and Rami was returned to his family on September 30, 1991.

In early 1993, DCFS sought and was granted temporary custody of Rami. On August 15, 1993, Joyce filed an emergency motion to vacate the temporary custody order. Over the next several months the trial court heard testimony on this issue.

On January 25, 1994, the trial court denied Joyce's motion and Rami remained in the temporary custody of DCFS. Joyce thereafter filed an emergency motion asking the court to place Rami with her under an order of protection. On April 7, 1994 the trial court entered an interim order providing that while Rami was to remain in the temporary custody of DCFS, he should be returned to his mother's home for an "unsupervised, overnight visit with his family" which was to continue until further order of the court.

Rami was returned to his mother's home and DCFS continued providing family preservation services pursuant to a DCFS service plan. On March 15, 1994, Dr. Bennett Leventhal, a professor of Psychiatry and Pediatrics at the University of Chicago who had been ordered by the court to prepare a placement assessment of Rami, presented his final report to the court. Dr. Leventhal's report indicated that while in his opinion it was in Rami's best interest to be returned to the custody of his mother, Rami was still in the need of extensive treatment.

On February 7, 1995, the trial court held an adjudicatory hearing and the parties entered a stipulation of "no-fault dependency". A disposition hearing was held later that same day. At that hearing, Charles Dorothy, Rami's DCFS case worker, testified that Rami was in need of individual and family therapy, individual attention from a personal care attendant, tutorial services and anger therapy. Dorothy also stated that he did not know how long Rami would require these services and said that there was no "end in sight" for the necessity of a personal care attendant. Testimony further indicated that the cost of providing a personal care attendant alone exceeded $100,000 per year.

Following the testimony, the trial court noted the unique circumstances of the case and entered a disposition order which (1) adjudicated Rami a ward of the court, (2) found that Joyce M. was fit and willing to care for Rami "with the continued provision of indicated services", (3) returned Rami to the care and custody of Joyce M., and (4) placed Rami in the guardianship of the chief probation officer "only for the purpose of consenting to necessary medical treatment, including major medical, in the event mother withholds her consent." At the same time, the trial court denied the request by DCFS to release it from the case. DCFS now appeals from the denial of this request.

ARGUMENT(S)

I.

Initially, we note that while normally the scope of review in an interlocutory appeal is limited to an examination of whether the trial court abused its discretion in granting or refusing the requested interlocutory relief, where, as in the present case, the question presented is one of law, a reviewing court must determine the propriety of the trial court's judgment independently. In re Lawrence M., 172 Ill. 2d 523, 670 N.E.2d 710, 219 Ill. Dec. 32 (Ill. 1996). Additionally, this court may consider substantive issues in determining whether the trial court acted within its authority. See Dixon Association for Retarded Citizens v. Thompson, 91 Ill. 2d 518, 524-25, 64 Ill. Dec. 565, 440 N.E.2d 117 (1982).

On appeal, DCFS first argues that the portion of the juvenile court's disposition order directing the department to continue providing services to Rami and his family is barred by the doctrine of sovereign immunity. The doctrine of sovereign immunity provides that actions against the State must be filed in the Court of Claims. 745 ILCS 5/1 (West 1994). The determination of whether a suit is in fact an action against the State turns upon an analysis of the issues involved and the relief sought rather than the formal designation of the parties. In re Lawrence M., 172 Ill. 2d at 527, 670 N.E.2d 710, 219 Ill. Dec. 32; Senn Park Nursing Center v. Miller, 104 Ill. 2d 169, 83 Ill. Dec. 609, 470 N.E.2d 1029 (1984). Therefore, while suits that will potentially subject the State to liability constitute a claim against the State which must be filed in the Court of Claims, suits against State officials which merely seek to compel them to perform their duty are not suits against the State for purposes of sovereign immunity. In re V.H., 197 Ill. App. 3d 52, 143 Ill. Dec. 751, 554 N.E.2d 686 (1990).

We do not find the portions of the order at issue here to be barred by the doctrine of sovereign immunity. The portions of the disposition order directing DCFS to continue providing services to Rami and his family essentially direct DCFS administrators to provide services. Therefore, even though no particular administrator within DCFS is named as a party in this action, the order in question nonetheless compels ...


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