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In Re K.D.

February 4, 2011

IN RE K.D., A MINOR THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, AND D. JEAN ORTEGA-PIRON, GUARDIANSHIP ADMINISTRATOR OF THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLANTS


Appeal from the Circuit Court of Cook County. No. 09 JD 20007 The Honorable Richard F. Walsh, Judge Presiding

The opinion of the court was delivered by: Presiding Justice Garcia

PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion.

Justice R.E. Gordon concurred in the judgment and opinion. Justice Cahill dissented, with opinion.

OPINION

On July 9, 2009, the circuit court appointed the Illinois Department of Children and Family Services (DCFS) as guardian of minor K.D., then age 16, in a delinquency proceeding after making K.D. a ward of the court. DCFS contends the circuit court was without subject matter jurisdiction to enter such an order, rendering the order void. According to DCFS, the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2008)) requires the filing of a neglect petition before a court may appoint DCFS as guardian of a minor at least 15 years of age, in a delinquency proceeding pursuant to section 5-710(1)(a)(iv) of the Act (705 ILCS 405/5-710(1)(a)(iv) (West 2008) ("Kinds of sentencing orders")). Counsel for the minor, supported by the State's Attorney of Cook County (County), contends section 5-710(1)(a)(iv), as amended in 2008, confers upon the circuit court authority to determine that "an independent basis of abuse, neglect, or dependency" exists, without strictly adhering to the procedural requirements for neglect petitions in Article II of the Act. We agree with K.D. and the County, and affirm. Based on the language added in 2008, section 5-710(1)(a)(iv) of the Act vested the circuit court with authority to make a finding that K.D. was neglected based on the social investigation report that neither parent could care for him, which provided an independent basis for a neglect finding apart from the facts underlying the delinquency petition. Based on such a finding, the court had authority to place K.D. in the guardianship of DCFS as a condition of his probation.

BACKGROUND

In March 2009, a delinquency petition was filed regarding K.D., who was 16 years old at the time. The petition charged K.D. with 10 counts of delinquency, including aggravated robbery, robbery, aggravated battery, battery, theft, and theft from person. The delinquency petition alleged that in February 2009, K.D. stole an MP3 player, Blackberry device, camera, and credit card after repeatedly kicking and punching the victim in the face. The petition asked that K.D. be made a ward of the court. At his arraignment, K.D. pleaded not guilty. He was ordered to abide by a curfew.*fn1

In May 2009, K.D. pleaded guilty to one count of felony theft from person and was adjudicated delinquent. K.D. was not taken into custody, but was ordered to have no contact with the victim.

In July 2009, probation officer Nancy Freedman submitted a social investigation report for consideration at the sentencing hearing pursuant to section 5-701 of the Act (705 ILCS 405/5-701 (West 2008) ("Social investigation report")). According to the report, prior to the February 2009 incident, K.D. had several police "station adjustments" for theft and assault, criminal damage to property, consumption of liquor by a minor, and obstruction of justice. The report indicated K.D. had been diagnosed with emotional problems, had a history of alcohol and marijuana abuse, and was a member of a street gang. According to the report, neither of K.D.'s parents, who never married and were no longer a couple, provided for K.D.; nor would the parents be able to provide for him in the foreseeable future as neither parent had a stable living environment. Each parent told the probation officer that K.D. could not live with him or her. In her report, Ms. Freedman noted, "it is not known where K.D. is staying." Ms. Freedman concluded "the Probation Department does not appear to have resources that can meet K.D.'s needs." In her report, Ms. Freedman suggested that K.D. "possibly *** would be eligible for a hearing before the DCFS Dependency Committee."

On July 6, 2009, K.D. appeared before the court for sentencing on his guilty plea on the February 2009 incident and for an arraignment on a new delinquency petition, charging retail theft of alcohol, to which he pleaded not guilty. K.D.'s father and grandmother were present in court; his mother did not appear. The court asked probation officer Freedman whether she recommended a disposition. Ms. Freedman stated she was constrained because she did not know K.D.'s current living situation as her attempts to locate K.D. following her initial interview with him for the social investigation report were unsuccessful. Ms. Freedman stated she could ask that K.D. be "screened in front of a committee with DCFS. [But] I think that's really a long shot." She opined K.D. appeared to be a danger to himself and others. The assistant State's Attorney and counsel for K.D. noted K.D. had no place to stay, was emotionally unstable, was not attending school, was too young to be living on the streets, and was without any resources. The court ordered K.D. taken into custody and continued the matter for a DCFS representative to be present.

Three days later, on July 9, 2009, a DCFS representative appeared at the court hearing. DCFS noted it appeared with short notice of the hearing and was aware of few facts of the case. DCFS questioned the juvenile court's jurisdiction to place K.D. in the guardianship of DCFS based on In re E.F., 324 Ill. App. 3d 174, 754 N.E.2d 837 (2001), and In re A.H., 195 Ill. 2d 408, 748 N.E.2d 183 (2001). DCFS argued the cases stand for the proposition that a petition for adjudication of wardship of a minor under Article II of the Act must be filed before a court may enter a DCFS guardianship order. The trial judge responded, "The case law isn't [so] clear." The court observed section 5-710(1)(a)(iv) of the Act had been amended after the cases DCFS cited were decided and noted the time to act regarding K.D. was running short: "[T]he problem is, *** I got a kid that is going to turn 17. And I know if he does and I haven't sentenced him, you will be right back here saying, ['G]ee, that statute is good law.[']"*fn2

The juvenile court then sentenced K.D. to three years' probation on the February 2009 incident. The juvenile court also found K.D. neglected based on the social investigation report finding that neither parent would allow K.D. to live with him or her and that K.D. had no known residence. The court declared K.D. "to be a ward of the court because of neglect" and appointed DCFS as K.D.'s guardian. The court found "[t]he appropriate services aimed at family preservation or family reunification have been unsuccessful." As a special condition of his probation, the court required K.D. to cooperate with any placement by DCFS.

In its motion to reconsider, DCFS argued that a delinquent minor, following sentencing under section 5-710(1)(a)(iv) of the Act, may only be placed in the guardianship of DCFS in two circumstances: (1) when the minor is under 15 years of age, and

(2) for a minor 15 years or older, when a court finds, pursuant to Article II of the Act, that there is an independent basis, other than the minor's delinquency, for finding abuse, neglect, or dependency. Under the second circumstance, subject matter jurisdiction would vest in the juvenile court to permit the entry of a DCFS guardianship order only upon the filing of a neglect petition under Article II of the Act. No such petition was filed regarding K.D.

Counsel for K.D. argued that amended section 5-710(1)(a)(iv) of the Act permitted a juvenile court, in the course of sentencing a minor, to make a finding of neglect, independent of the delinquency allegations, and place him or her in the guardianship of DCFS. K.D.'s counsel argued the sentencing section contained no explicit requirement that a neglect petition be filed to vest the court with subject matter jurisdiction before DCFS may be appointed guardian of a minor. The court took DCFS's motion under consideration.

At the August 10, 2009, hearing, DCFS set out the procedures it believed must be followed to permit a juvenile judge, in a sentencing context, to make a finding of neglect regarding a minor. In denying the motion to reconsider, the court rejected DCFS's contention that the procedures it recited were mandated by law:

"I don't think I have to wait for [DCFS], and some other judge, to independently make that decision. I can hold a hearing, which I held, and find that he is a dependent, neglected minor. That's what the statute says. And I don't believe that I have to follow some [set] procedure because I don't think that [sentencing] statute incorporates all of the procedural and bureaucratic requirements of [Article] II.

It's a sentencing statute and it provides that this is one of the options that a Judge has ...


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