Appeal from the Circuit Court of Cook County. No. 99 JD 18209 Honorable Andrew Berman, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Hall
The intervenor, Oak Park River Forest High School, District No. 200 (School District), appeals from an order of the circuit court of Cook County directing it to pay the educational costs of D.D., a minor, while he attends an out-of-state school.
On May 13, 1999, the State filed a petition for adjudication of wardship for D.D. On July 13, 2000, the State filed a petition for supplemental relief, alleging that D.D. had not complied with the conditions of his probation imposed by the juvenile court on October 14, 1999. *fn1
Subsequently, D.D. was again placed on probation. Louise Bartnicki, D.D.'s probation officer, recommended that D.D. receive residential placement, based upon the fact that D.D.'s mother was unable to get him to go to counseling, keep his appointments with the probation department or go to school. In December 2000, Judge Walsh, a juvenile court judge, entered an order placing D.D. at Heritage Center in Provo, Utah. D.D. was admitted to Heritage Center on March 7, 2001.
Thereafter, the office of the public defender of Cook County filed a motion in juvenile court for an order for the care and support of D.D. The motion was scheduled for a hearing on February 28, 2001. However, the record on appeal does not contain a copy of the motion, a transcript of a hearing on that date or the order that was entered on that date. *fn2
On March 8, 2001, the School District filed an objection to an order of payment for the educational component of D.D.'s court-ordered residential placement. The objection alleged the following facts.
D.D. was adjudicated a delinquent minor on October 14, 1999. At the time of his sentencing, D.D. was a resident and special education student of the Elmwood Park School District, which in turn is a member of the Leyden Area Special Education Cooperative. D.D. was receiving special education services at Elmwood High School.
On March 16, 2000, the Elmwood Park special education program team met to discuss D.D.'s educational placement. The team concluded that D.D.'s educational needs required placement in a therapeutic day school within the community, which was agreeable to both D.D. and his mother.
In January 2001, D.D.'s mother became a resident of the School District. In February 2001, the School District received a notice to appear in the juvenile court of Cook County to discuss its obligation to pay for the educational component of D.D.'s residential placement at Heritage Center.
The School District maintained that it had no obligation to pay for the educational component of a minor's residential placement when that placement is made for noneducational reasons.
HEARING ON THE SCHOOL DISTRICT'S OBJECTION
On May 21, 2001, Judge Berman, a juvenile court judge, held a hearing on the School District's objection at which the following testimony was given.
Ronald Sesterhenn testified as follows. He is the technical assistant supervisor and manages all the special education services for District 401 in Elmwood Park. In May 1997 D.D., who was in sixth grade, was identified as behavior disordered and eligible for special education services. D.D. suffered from poor impulse control, lack of cooperation with staff, and low self-confidence and had failing grades. Once D.D. was identified as eligible for special education services, he then would be reviewed yearly under the "Individual Educational Program" (IEP). While D.D. was in seventh grade, his needs did not change; his grades were still failing, and attendance started becoming an issue. D.D. remained in the eighth grade for two years.
In February 2000 D.D. had his three-year reevaluation, and it was determined that he required more services through the IEP process. Given that D.D. was still failing academically, the reevaluation team felt that he required more structure, and D.D. was enrolled in a therapeutic day program at Joseph's Academy. D.D.'s attendance improved from what it had been in the past, and he was able to graduate from eighth grade, albeit with C's and D's. However, in November 2000 Mr. Sesterhenn wrote to D.D.'s mother explaining that bus service for D.D. was being discontinued because D.D. was being held in the Department of Corrections. D.D.'s attendance at Joseph's Academy had begun to drop due to unexcused absences, court appearances and his detention in jail. Even though he was discharged from Joseph's Academy, D.D. was still considered to be in need of services.
According to Mr. Sesterhenn, while D.D. was at Joseph's Academy, he received counseling to address his emotional disorders. Mr. Sesterhenn explained that at Joseph's Academy, the whole school day was involved and wrapped around meeting the emotional needs of the students there.
In December 2000 D.D.'s mother informed Mr. Sesterhenn that she had moved to Oak Park.
According to Mr. Sesterhenn, truancy is not considered a special education problem.
Louise Bartnicki, a probation officer assigned to the juvenile court, testified as follows. She was assigned D.D.'s case in October 1999 when he was placed on probation for reckless conduct. At that time, D.D. was repeating the eighth grade at Elm Middle School in Elmwood Park. While he was repeating the eighth grade, D.D. was not in compliance with the terms of his probation. He was truant quite a bit and failed to comply with counseling and drug treatment requirements. In school, he was placed on suspension, did not serve his detentions, and engaged in fighting and in general gross behavior. His academic progress was difficult to gauge because of his truancy problem. Ms. Bartnicki was not part of the team that recommended D.D.'s placement at Joseph's Academy; she was merely told by Mr. Sesterhenn that the placement was going to occur. She was invited to attend the IEP placement review with D.D.
According to Ms. Bartnicki, it was difficult to determine if D.D.'s behavior improved at Joseph's Academy because of his absences and truancy. D.D. was not in compliance with the terms of his probation order since he continued to be absent from school, did not comply with TASC (Treatment Alternatives for Special Clients), and did not do his community service or go to counseling. D.D. was in juvenile detention sometime in late June or early July 2000 for a couple of weeks, and then again in November 2000, at which time he was held until placement was made. However, his truancy problems were not a direct result of his being in detention.
At this point, Judge Berman interjected that the common law record showed that D.D. was in detention as of October 6, 2000, and remained there until placement and that there were two different detention periods, one of which was about two weeks and the other of which was about a week when he was held in custody and then released.
Ms. Bartnicki reiterated that D.D. continued to have absentee problems even when he was not in detention, with some of the absences excused and others, unexcused. D.D. was incarcerated for violating his probation, and there was also an immediate threat that he would harm himself and use drugs. Ms. Bartnicki made no recommendations for alternative placements for D.D. through the school. However, she did recommend therapeutic residential placement for D.D. before Judge Walsh in view of D.D.'s continued problems with attendance at school, going to counseling and keeping his probation appointments. Had D.D. attended Joseph's Academy on a consistent basis and complied with probation and counseling requirements, he might have been "okay" there, but he was not doing that.
Kevin Hickey, supervisor of the advocacy unit of the Cook County Juvenile Probation Department, testified as follows.
D.D. was recommended for residential placement as the result of several violations of probation and a clinical evaluation conducted in August 2000 which recommended residential placement. Judge Walsh determined that as part of D.D.'s sentence, D.D. was to be residentially placed, and the case was referred to the probation department for placement. In making the determination of residential placement for D.D., Mr. Hickey reviewed the social investigation report by Ms. Bartnicki, the clinical evaluation and the school records from Leyden School District.
Based on these records, Mr. Hickey determined that D.D. required more structure in the home and community; he had educational needs; he continued to have truancy and discipline problems at Joseph's Academy; there were drug use concerns; and he needed individual and family counseling. Heritage Center in Utah was chosen for D.D. Heritage Center is a facility for troubled minors, not necessarily delinquent, and offers individual, group, and family counseling and recreational therapy for children, as well as addressing educational needs. Other minors with special education needs had been placed at Heritage Center.
Mr. Hickey understood that D.D. would be provided with special education services at Heritage Center, which would include six hours of education a day in a special education classroom, and he would receive individual attention in that classroom to meet his special needs. Based upon his review of the IEP and D.D.'s history of lack of motivation, Mr. Hickey believed that Heritage Center was appropriate.
Mr. Hickey monitors D.D.'s progress at Heritage Center through monthly reports, as well as telephone conferences with D.D. and his therapist. While Mr. Hickey stated that, at the present time, D.D. is doing fairly well, he acknowledged that D. D. is having some difficulty with his peers. At first, his academic progress was good, and he was maintaining high grades. However, it was reported that he had not completed the work in one class and had fallen asleep in an independent study course. Nevertheless, Mr. Hickey believed that D.D. continued to need the structure, therapy and counseling that Heritage Center affords him. In Mr. Hickey's opinion, D.D. is making more progress than at Joseph's Academy because he can attend school on a regular basis in an environment in which he can excel.
Mr. Hickey related that the lowest grade that D.D. had received at Heritage Center was a C-; the rest of his grades were A's and B's. According to Mr. Hickey, Heritage Center would be considered a secure facility with D.D.'s attendance and residence there well monitored, although it was possible for him to run away from there.
In response to Judge Berman's questions in clarification, Mr. Hickey explained that D.D. was placed at Heritage Center for a variety reasons. In the past, when a minor had special education needs, a portion of the placement cost was paid by the minor's school district. In D. D.'s case, the tuition is $70 per each day that school is in session.
On June 15, 2001, Judge Berman ruled that the School District was liable to pay the educational component of D.D.'s residential placement. On June 29, 2000, Judge Berman entered an order requiring the School District to provide payment to Heritage Center for D.D.'s education costs. The juvenile court further ordered that the ...