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12/27/96 T.L.C. v. T.L.C.

December 27, 1996


Appeal from Circuit Court of Ford County. No. 95J42. Honorable William M. Roberts, Judge Presiding.

As Corrected February 24, 1997.

Honorable Frederick S. Green, J., Honorable John T. McCullough, J. - Concur, Honorable Robert W. Cook, J. - Concur. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

In this case we hold that when a circuit court makes an original disposition order placing a child with the Illinois Department of Children and Family Services (DCFS) pursuant to section 2-27(1)(d) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-27(1)(d) (West Supp. 1995)), the circuit court cannot properly dictate where DCFS shall place the child. In so ruling, we are drawing analogy to and following the precedent of the first district in In re Chiara C., 279 Ill. App. 3d 761, 665 N.E.2d 404, 216 Ill. Dec. 344 (1996), where a similar holding was made concerning a dispositional order in regard to a child after a review hearing pursuant to section 2-28 of the Act. 705 ILCS 405/2-28 (West 1994).

Prior to February 13, 1996, several delinquency and dependency allegations in petitions in regard to minor respondent T.L.C. were before the circuit court of Ford County. On that date the State filed an amended petition alleging that T.L.C. was a neglected minor as set forth in section 2-3(1)(b) of the Act (705 ILCS 405/2-3(1)(b) (West Supp. 1995)) in that the minor's environment was injurious to her health and welfare. The petition also realleged T.L.C. was a dependent minor pursuant to section 2-4(1)(c) of the Act. 705 ILCS 405/2-4(1)(c) (West Supp. 1995). Other petitions were withdrawn. At a subsequent hearing, the minor's father, who had never appeared, was defaulted. The mother, represented by a guardian ad litem (GAL) and the State's Attorney, stipulated that T.L.C. was a neglected and dependent minor and that she would be placed under the guardianship of DCFS with direction that she be placed with a private institution, the Mill at Rockford. Apparently, the court's probation officer had made arrangements with the officers of the Mill for T.L.C. to be accepted there in one week.

A social history presented by the probation officer indicated that (1) T.L.C. was a high school freshman; (2) she had no behavioral problems other than excessive absenteeism; (3) T.L.C. had a chaotic home situation living with her mother and three siblings, all of whom had different fathers; (4) her mother engaged in actions at home that bothered T.L.C.; and (5) T.L.C. had lived with a grandmother for awhile, but T.L.C. maintained the grandmother had abused her. A representative of DCFS appeared at the hearing objecting to the agreement, stating that DCFS was unaware of it and had no opportunity to "try and remedy the situation at home."

On February 28, 1996, the circuit court entered the order on appeal. In addition to finding that T.L.C. was neglected and dependent, the order also (1) found her parents were "unable, unfit and unwilling for reasons other than financial circumstances alone" to care for and train her; (2) appointed the guardianship administrator of DCFS her guardian with power to place; (3) "committed [T.L.C.] to " for residential placement at the Mill; and (4) gave T.L.C.'s parents temporary custody until she could be received by the Mill. A member of the staff of DCFS was present at the dispositional hearing and objected to the portions of the order requiring placement at the Mill. This staff person had only one day's notice of the hearing and had no opportunity to interview either T.L.C. or her mother. DCFS has appealed, contending that (1) the court lacked jurisdiction to order the placement and to provide for temporary custody with the parents; (2) the placement violated the doctrines of separation of powers and sovereign immunity; and (3) the temporary and permanent placements were breaches of discretion.

We conclude that the circuit court erred in directing that DCFS place the minor with the Mill after it made DCFS T.L.C.'s guardian. As this issue is raised on direct appeal and not by collateral attack, we need not take up the ticklish question of whether the circuit court's order was void for lack of jurisdiction. See In re M.M., 156 Ill. 2d 53, 75, 619 N.E.2d 702, 714, 189 Ill. Dec. 1 (1993) (Miller, C.J., concurring). As we are setting aside the order for placement, we need not consider whether it violated the doctrines of either separation of powers or sovereign immunity. Under the circumstances which render the order for placement at the Mill erroneous, we also find the order for temporary placement in error. We reverse and remand for a new hearing.

Section 2-23(1)(a)(2) of the Act provides that when, as here, the court determines that the child should not be returned to its home, one of the dispositions can be a placement "in accordance with Section 2-27." 705 ILCS 405/2-23(1)(a)(2) (West Supp. 1995). Section 2-27(1) lists, as away-from-home alternatives for placements, the following:

"(a) place him in the custody of a suitable relative or other person as legal custodian or guardian;

(b) place him under the guardianship of a probation officer;

(c) commit him to an agency for care or placement, except an institution under the authority of the Department of Corrections or of the Department of Children and Family Services;

(d) commit him to the Department of Children and Family Services for care and service ***." (Emphasis added.) 705 ILCS ...

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