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In re Curtis B.

February 3, 2003

IN RE CURTIS B., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
LEOLA B. ET AL., APPELLANTS)



The opinion of the court was delivered by: Chief Justice McMORROW

Docket No. 92010-Agenda 8-March 2002.

Section 2-28(3) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-28(3) (West 1998)) contains an appeal provision which states that permanency orders may be immediately appealed as a matter of right under Supreme Court Rule 304(b)(1) (155 Ill. 2d R. 304(b)(1)). At issue here is whether this appeal provision violates the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, §1).

BACKGROUND

Reflecting the concern that a lack of permanency in a child's life can be harmful to the child's development, section 2-28 of the Act (705 ILCS 405/2-28 (West 1998)) requires that efforts be made to establish timely, permanent living arrangements for a child who has been made a ward of the circuit court. To this end, section 2-28(2) of the Act (705 ILCS 405/2-28(2) (West 1998)) mandates that "permanency hearings" be held on a regular basis to review the child's placement status. At the conclusion of a permanency hearing, pursuant to section 2-28(3) of the Act (705 ILCS 405/2-28(3) (West 1998)), a written order must be entered that sets forth a permanent placement goal for the child. By statute, eight permanency goals are available, ranging from the goal of returning the child home to terminating parental rights and seeking adoption. See 705 ILCS 405/2-28(2)(A) through (2)(G) (West 1998).

In July 1999, the circuit court of Cook County conducted a permanency hearing for the minor in this case, Curtis B. At the close of the hearing, the circuit court found that medical testimony presented during the hearing established that Curtis had certain intellectual and emotional "special needs" which had to be met to ensure his adequate development. The court further found that Curtis B.'s mother, Leola B., "would not be able to parent a special needs child."

Following the permanency hearing, as required by section 2-28(3) of the Act, the circuit court entered a written order which established a goal for Curtis' permanent placement. Based on its findings from the permanency hearing, the court selected a permanency goal for Curtis of "substitute care pending court determination on termination of parental rights" (705 ILCS 405/2-28(2)(C) (West 1998)).

On July 28, 1999, Leola filed a notice of appeal from the circuit court's permanency order. Leola's appeal was authorized by the appeal provision of section 2-28(3), which states: "Any order entered pursuant to [section 2-28(3) of the Act] shall be immediately appealable as a matter of right under Supreme Court Rule 304(b)(1)." 705 ILCS 405/2-28(3) (West 1998). Rule 304(b)(1), in turn, provides that appeals may be taken from a "judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party." 155 Ill. 2d R. 304(b)(1).

On April 30, 2001, the State filed a motion in the appellate court which sought to dismiss Leola's appeal for lack of appellate jurisdiction. In its motion, the State argued that a permanency order could not be appealed under Supreme Court Rule 304(b)(1) because such an order does not finally determine a right or status of a party as required by the rule. The State emphasized in its motion that the purpose of a permanency order is to set a goal for the child's permanent placement-not to finally determine the child's placement status. The State also emphasized that, under the Act, the permanency goal set forth in the order must be reviewed at least every six months and may be changed up until the time the goal is actually attained. Thus, the State argued that a permanency order "is always interlocutory" and, therefore, could not be appealed under Rule 304(b)(1).

In its motion to dismiss, the State also noted that, except as provided by supreme court rule, "the appellate court is without jurisdiction to review judgments, orders or decrees which are not final." Almgren v. Rush-Presbyterian-St. Luke's Medical Center, 162 Ill. 2d 205, 210 (1994). The State further noted that legislative attempts to grant appellate jurisdiction over non-final orders are void because such attempts "encroach upon the exclusive power of the supreme court to regulate matters of appellate practice and procedure." People v. Heim, 182 Ill. App. 3d 1075, 1081 (1989). The State maintained that the appeal provision of section 2-28(3) was an attempt to invoke the appellate court's jurisdiction to entertain an appeal from a non-final order. Hence, the State contended that the appeal provision violated the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, §1) and had to be stricken from the Act.

On August 2, 2001, the appellate court issued an opinion which granted the State's motion to dismiss Leola's appeal. 325 Ill. App. 3d 393. The appellate court agreed with the State that a permanency order is not a final order and that the legislature had "unduly encroached upon the inherent powers of the judiciary" by enacting the appeal provision of section 2-28(3) of the Act. 325 Ill. App. 3d at 398. In so holding, the court followed a line of unanimous decisions from the Fifth, Fourth and Second Districts of our appellate court which have held the appeal provision of section 2-28(3) unconstitutional. See In re D.D.H., 319 Ill. App. 3d 989 (2001); In re C.B., 322 Ill. App. 3d 1011 (2001); In re A.M., 324 Ill. App. 3d 144, 145-46 (2001) ("Based on the decisions in C.B. and D.D.H., we conclude that the order changing the permanency goal in the instant case constitutes a non-final order for which the supreme court has provided no rule for an appeal to this court and, therefore, we lack jurisdiction to consider the appeal").

We allowed Leola's petition for leave to appeal from the judgment of the appellate court dismissing her appeal. 177 Ill. 2d R. 315. On December 11, 2001, we granted leave to Curtis, represented by the Cook County public guardian, to appear as an appellant.

ANALYSIS

Statutes are presumed constitutional. In re R.C., 195 Ill. 2d 291, 296 (2001). The party challenging the validity of a statute has the burden of clearly establishing that it is unconstitutional. People v. Inghram, 118 Ill. 2d 140, 146 (1987). The constitutionality of statute is a question of law which we review de novo. Brown's Furniture, Inc. v. Wagner, 171 Ill. 2d 410, 420 (1996).

Before this court, the State repeats the principal arguments that it advanced in the appellate court. The State notes that the Act itself defines a permanency goal as one which establishes "the future status of the child" (705 ILCS 405/1-3, 2-28(2) (West 1998)), and that, by statute, a permanency order sets forth the "future status of the minor" (705 ILCS 405/2-28(3)(a) (West 1998)). The State further notes this court's observation that " `[t]he selection of a permanency goal is not a final determination on the merits with regard to termination of parental rights but, rather, an intermediate procedural step taken for the protection of and best interests of the child.' " In re D.S., 198 Ill. 2d 309, 329 (2001), quoting In re K.H., 313 Ill. App. 3d 675, 682 (2000). According to the State, under the plain language of the Act, "a permanency goal does not finally determine a right or status of a party but instead looks at the ...


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