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In re A.H.

April 19, 2001

IN RE A.H., A MINOR (PATRICK T. MURPHY, COOK COUNTY PUBLICGUARDIAN, APPELLANT, V. D. JEAN ORTEGA-PIRON, APPELLEE).


The opinion of the court was delivered by: Justice Thomas

Docket No. 89418-Agenda 20-January 2001.

This case presents the question of whether the circuit court, juvenile division (hereinafter, circuit court), has jurisdiction to entertain a motion for removal of a minor from temporary foster care pursuant to section 2-10 of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/2-10 (West 1998)). The respondent, A.H., by Patrick T. Murphy, Cook County public guardian, his attorney and guardian ad litem (GAL), presented an oral emergency motion before the juvenile court seeking the removal of A.H. from his temporary foster home. Over the objections of D. Jean Ortega-Piron, guardianship administrator of the Department of Children and Family Services (DCFS), the Cook County State's Attorney, and the foster mother's court-appointed attorney, the juvenile court ordered A.H.'s removal.

The DCFS filed an appeal of the juvenile court's order and the appellate court reversed. It ruled that the juvenile court's finding that A.H.'s removal was a matter of "immediate and urgent necessity" was against the manifest weight of the evidence under section 2-10(2) of the Act (705 ILCS 405/2-10(2) (West 1998)). Since there was no immediate or urgent necessity, the appellate court reasoned, the juvenile court lacked the authority to remove A.H. from his temporary foster home. 312 Ill. App. 3d 638.

We allowed A.H.'s petition for leave to appeal (177 Ill. 2d R. 315(a)). For the reasons set forth below, we hold that the juvenile court had jurisdiction over the predispositional motion to remove A.H. from his temporary foster placement. In addition, we hold that the juvenile court's finding that it was in the best interests of A.H. to be removed from his temporary foster placement was not against the manifest weight of the evidence. Accordingly, we reverse the judgment of the appellate court.

I. FACTUAL BACKGROUND

On or about October 19, 1998, Linda H., the mother of A.H., age 9, called the DCFS hotline asking that A.H. be removed from her home before she killed him. The next day, the Cook County State's Attorney filed a petition for adjudication of wardship with the juvenile court pursuant to section 2-13 of the Act (705 ILCS 405/2-13 (West 1998)). The petition alleged child abuse and neglect pursuant to section 2-3 of the Act. 705 ILCS 405/2-3(1)(b), (2)(ii) (West 1998). The petition also noted that the minor had been taken into custody on October 19, 1998, and that a temporary custody hearing was set before the juvenile court for October 21, 1998. See 705 ILCS 405/2-9(1) (West 1998).

On October 21, 1998, the juvenile court entered a temporary custody order pursuant to section 2-10 of the Act (705 ILCS 405/2-10 (West 1998)). That order provided that A.H. be removed from Linda H.'s home, and granted temporary custody of A.H. to DCFS, with the right to place him. The court further named the Cook County public defender as attorney for Linda H. and the Cook County public guardian as guardian ad litem for A.H. Later that month, pursuant to the temporary custody order, DCFS placed A.H. in the foster home of Margie B. An adjudicatory hearing on A.H.'s wardship was scheduled for January 19, 1999.

On December 30, 1998, Linda H. again called the DCFS hotline and reported that A.H. had told her that he was being beaten by Margie B.'s 11-year-old grandson, who occasionally visited the home. Linda H. reported that she had observed cuts, welts, bruises, and a swollen left eye on her son. The DCFS recorded the telephone call in a report dated January 5, 1999, and the GAL received the report on January 6, 1999.

Two weeks later, on January 19, 1999, the parties appeared before the juvenile court for the previously scheduled adjudicatory hearing. The hearing began with a "court family conference" in which the juvenile court reviewed the services to be provided to Linda H. In addition, the GAL made an oral emergency motion for the removal of A.H. from his foster home based upon the allegations of physical abuse. The DCFS objected to the GAL's characterization of the motion as an emergency, noting that the incident had occurred almost three weeks prior to the hearing and that the GAL knew of the incident two weeks prior to the hearing. Despite its knowledge of the incident, DCFS argued, the GAL had not presented a motion to remove A.H. from Margie B.'s foster home and had not attempted to initiate any proceeding to remove A.H. under DCFS's service appeal process. DCFS asserted that the court first must determine that there is an emergency before proceeding with a motion to change foster placement. It also objected that the foster parent had not been given notice of the motion as required by the Act. See 705 ILCS 405/1-5(2)(a), 2-9(2) (West 1998). DCFS asked the court to continue the motion to the next day so a petition could be filed and notice given. The juvenile court agreed and continued the motion to the next day.

Later that day, however, and over the objections of DCFS, the court recalled the case to hear testimony from Linda H., A.H.'s mother, based upon the public defender's representation that she was unable to attend the next day due to a work conflict. The court heard the testimony of Linda H. and DCFS caseworker Jonester Edwards. Before Edwards' testimony was completed, the court continued the matter until the next day and ordered DCFS to notify the foster mother, Margie B., of the next day's proceedings. The next day, the hearing reconvened with Margie B. present. The court then recalled Edwards and heard the testimony of the remaining witnesses.

A. The Juvenile Court's Findings

At the close of the testimony, the juvenile court applied the standards set forth for temporary custody hearings in section 2-10 of the Act (705 ILCS 405/2-10 (West 1998)) and In re R.M., 288 Ill. App. 3d 811 (1997), and found that there was probable cause to believe A.H. was abused or neglected, that there was immediate and urgent necessity to support the removal of A.H. from the foster home, and that reasonable efforts could not prevent or eliminate the necessity of that removal. The court also found that the removal of A.H. from the foster home was "consistent with [his] health, safety and best interests."

The juvenile court based its conclusions primarily on its finding that the foster mother, Margie B., was not a "truth-teller." The court observed that Margie B. did not "look [the court] in the eye during her entire testimony," and concluded that Margie B. could not be trusted to follow any protective plan which might be developed. The court ordered that DCFS remain the appointed temporary custodian of A.H., but also ordered that A.H. be removed from Margie B.'s home. DCFS appealed.

B. The Holding of the Appellate Court

The parties raised essentially the same arguments before the appellate court as they raise in this appeal. First, DCFS argued to the appellate court that, under section 2-10(2) of the Act, the juvenile court may order the removal of a child from a foster home only where there is probable cause to believe the minor is abused or neglected and the matter is of immediate and urgent necessity. DCFS argued that there was no such emergency in this case and, therefore, the juvenile court lacked the authority to side-step the DCFS administrative service appeal process and order A.H. removed from Margie B.'s home. In response, the GAL argued that the language of section 2-10(2) of the Act grants the juvenile court broad authority to select a child's placement, and that the court acted properly in removing A.H. from Margie B.'s home.

The appellate court agreed with DCFS and held that in order for the juvenile court's order to be valid, there must have been probable cause to believe that A.H. was abused, neglected, or dependent, and it must have been a matter of immediate and urgent necessity that he be removed from Margie B.'s foster home. 312 Ill. App. 3d at 650. The court further held that the juvenile court's finding of immediate and urgent necessity was against the manifest weight of the evidence, as the record showed that there was little chance that Margie B.'s grandson would injure A.H. again. The appellate court noted that Margie B. had entered into a protective plan in which she agreed that if her grandson visited again, there would be direct adult supervision. In addition, both the caseworker Edwards and James ...


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