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In re D.S.

September 16, 1999


The opinion of the court was delivered by: Justice Thomas


Appeal from the Circuit Court of Kane County. No. 93--J--405 Honorable Thomas E. Mueller, Judge, Presiding.

JUSTICE THOMAS delivered the opinion of the court:

The State appeals from an order of the circuit court of Kane County directing the State to prosecute a petition for termination of parental rights filed by the Court Appointed Special Advocates of Kane County, guardian ad litem of D.S., a 10-year-old minor, against the minor's parents, R.S. and P.S. The guardian ad litem cross-appeals from an order finding that only the State had the authority to prosecute the petition. We affirm both orders.

The record reveals that D.S., along with her older sisters, R.S., R.S., and E.H., were removed from their parents and taken into protective custody on September 9, 1993, due to physical abuse and environmental neglect. On November 9, 1993, the State filed a petition for adjudication of wardship. On that same day, a hearing was held at which the parents stipulated to the neglect and abuse charges, and the minors were adjudicated wards of the court under the custody and guardianship of the Department of Children and Family Services (DCFS). On November 10, 1993, the court appointed a guardian ad litem (hereinafter, the GAL) to represent the four minors.

On July 8, 1997, the GAL, on behalf of D.S., R.S. and R.S., filed a petition for the termination of the parental rights of both parents. E.H. was emancipated at the time of the petition, and it was not brought on her behalf. R.S. and R.S. objected to the termination petition being filed on their behalf. Accordingly, the attorney for the GAL was allowed to withdraw his appearance on their behalf and they were appointed new counsel.

The termination petition brought on behalf of D.S. alleged that R.S. and P.S. were unfit parents in that (1) they both failed to make reasonable efforts to correct the conditions that were the basis of the removal of D.S. from them and (2) they failed to make reasonable progress towards the return of D.S. within 12 months after she was adjudicated a neglected and abused minor, as she had been in foster placement continuously since September 10, 1993, and there was no reason to believe that custody or guardianship of D.S would be restored to them in the near future. The petition further alleged that D.S. had lived continuously with her foster parents for the past six years, since September 1993. The petition also alleged that those foster parents were ready, willing, and able to adopt D.S.

On July 16, 1997, the State filed a motion to dismiss the termination petition, contending that it was the only party allowed to prosecute a termination petition. On August 26, 1997, the trial court ruled that the GAL had the right to file the petition since it was filed by "any adult" as provided for in section 2--13(1) of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/2--13(1) (West 1998)) but reserved ruling on whether the GAL had the right to prosecute the petition. The court further ruled that D.S. did not have standing to file the petition in an individual capacity because she was not an adult. On September 7, 1997, the trial court ruled a termination petition cannot be prosecuted by any party other than the State and denied the GAL's motion to prosecute the petition. However, the court refused to dismiss the petition, noting that the court could direct the State to prosecute the petition. The court then scheduled a permanency review hearing, stating that it would determine whether to direct the State to prosecute the termination petition based on the outcome of that hearing.

At the permanency review hearing held on January 16, 1998, the trial court found that the appropriate permanency goal was guardianship with the foster parents and that this was in the best interests of the child due to the length of current placement and the lack of success at past attempts at reunification. The court also noted that it was not ruling out the permanency goal of substitute care pending court determination on parental rights. On May 26, 1998, the trial court entered an order changing the permanency goal to substitute care pending a petition to terminate parental rights. The court then ordered the State to prosecute the termination petition filed by the GAL on behalf of D.S.

The two issues raised on appeal are (1) whether the trial court could properly allow the filing of the petition by the GAL and then order the State to prosecute the termination petition, and (2) whether the trial court correctly concluded that the GAL could not prosecute the petition.

We will first examine the applicable statute for guidance as to who is allowed to file a termination petition and whether the court has authority to order the State to prosecute such a petition. Under the general provisions of the Act, the statute identifies the general role of the State by stating, "[t]he State's Attorneys of the several counties shall represent the people of the State of Illinois in proceedings under [the] Act in their respective counties." 705 ILCS 405/1--6 (West 1998). Section 2--28(4)(b) of the Act currently provides that when return home is not selected as a permanency goal, the State's Attorney may file a motion to terminate parental rights of any parent who is unfit or has failed to make reasonable efforts to correct the conditions that led to the removal of the child or reasonable progress toward the return of the child. 705 ILCS 405/2--28(4)(b) (West 1998). However, the filing of petitions under the Act are not limited to the State's Attorney. In re J.M., 245 Ill. App. 3d 909, 918 (1993).

Section 2--13(1) of the Act plainly provides in relevant part:

"Any adult person, any agency or association by its representative may file, or the court on its own motion, consistent with the health, safety and best interests of the minor may direct the filing through the State's Attorney of a petition in respect of a minor ...

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