In re A.L.

Nos. 2--97--0057 & 2--97--0058 cons.
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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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In re A.L. and T.L., ) Appeal from the Circuit Court
Minors ) of Du Page County.
)
) Nos. 93--J--201
) 93--J--202
(The Department of Children )
and Family Services, ) Honorable
Petitioner-Appellant, v. ) James W. Jerz,
T.R., Respondent-Appellee). ) Judge, Presiding.
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JUSTICE BOWMAN delivered the opinion of the court:

The Department of Children and Family Services (DCFS) appeals
from an interlocutory order entered by the juvenile court of Du
Page County granting appellee T.R.'s petition for change of foster
placement and requiring DCFS, legal guardian of minors A.L. and
T.L., to remove the minors from the care of their foster parents
and select alternative foster placement. We affirm.
The following summary of facts is taken from the record. On
March 4, 1993, the juvenile court found that there was an immediate
and urgent necessity to place A.L. and T.L. in temporary shelter
care. The juvenile court entered an order removing the minors from
the home of their natural mother and step-father, respondent and
her husband, and placing them in DCFS s temporary custody. In July
1993, DCFS placed A.L. and T.L. in the foster care of Michael and
Becky Turner.
While in foster care, A.L. and T.L. underwent medical
treatment for their health problems. Dr. Nagamani Reddy, a child
psychiatrist, conducted a psychiatric evaluation of A.L. and T.L.
in August 1993. A.L. was diagnosed with posttraumatic stress
disorder. T.L. was diagnosed with major depression. In January
1995, A.L. was admitted to the hospital and underwent a five to six
week "comprehensive treatment program" as a result of his "voicing
thoughts of wanting to die." Dr. Reddy also evaluated A.L. during
his stay at the hospital and recommended that visitation with
respondent stop as a result of A.L.'s agitated, anxious, and
aggressive behavior after visits with respondent. Both A.L. and
T.L. took medication to treat their conditions.
On December 13, 1993, the juvenile court appointed a special
advocate on the minors' behalf. On May 2, 1995, the juvenile court
adjudicated A.L. and T.L. neglected and made them wards of the
court. Furthermore, it appointed DCFS custodian and legal guardian
of A.L. and T.L. DCFS had articulated a permanency goal, a goal
set by the service plan or during an administrative case review, of
returning the children to respondent's home. However, during an
administrative case review held on March 4, 1996, DCFS changed the
permanency goal from "return home" to "foster family placement."
In an order entered on May 29, 1996, the juvenile court found that
the change in the permanency goal was not in the best interests of
the children and remanded the matter to DCFS for a redetermination
of the permanency goal. The juvenile court found, inter alia,
that, "[t]here are issues and questions surrounding the foster home
placement of [A.L.] and [T.L.] which indicate that their foster
home placement may have negatively impacted the natural mother's
ability to see her children and reunify with them." Although a
permanency review hearing was set for July 9, 1996, no such hearing
was held.
On October 29, 1996, T.R. filed a petition for change of
foster home placement. In her petition, she maintained that it was
not in the best interests of the children to remain in the Turners'
care. On November 12, 1996, DCFS filed a motion to strike
respondent's petition for change of foster home placement. The
juvenile court denied DCFS's motion to strike on November 15, 1996,
and a hearing on respondent's petition followed. On December 17,
1996, the juvenile court granted the petition and ordered DCFS to
remove A.L. and T.L. from the Turners' home and select alternative
placement. Specifically, the juvenile court found:
"The service plan in this case consistently has been
return home to the natural parents. It has interfered with
this plan that the boys have not been able to see the
mother, they have not been able to progress towards this
role or make progress with the therapists who have been
appointed for them.
I believe that at this time it would be in their best
interests to take a fresh start. That they be relocated and
to see if this plan can still be accomplished.
***
But I'm looking to what is in the best interests of
these children, and if there was not discussion with the
Turners earlier, that does not change the fact that things
have happened which have impaired the ability of the boys to
progress towards the goal that's been set by DCFS."
Subsequently, DCFS filed a timely appeal.
DCFS's primary contention on appeal is that the juvenile court
exceeded its statutory authority when it ordered the removal and
transfer of the minors from the Turner foster home. DCFS maintains
that a juvenile court's authority is limited to that which is
specifically prescribed by the Juvenile Court Act of 1987 (Act)
(705 ILCS 405/1--1 et seq. (West 1996)). In short, absent the
specific statutory authority, the juvenile court lacked subject
matter jurisdiction to enter the order.
Respondent replies that the juvenile court was acting in the
best interests of the minors and did not abuse its discretion when
it ordered DCFS to remove them from the Turners' foster care. She
argues that the court acted within its regulatory authority over
administrative agencies. Moreover, she maintains that a court has
the authority to order DCFS "to perform certain acts and provide
services."
Initially we note that the Act governs the authority of a
juvenile court and any proceedings therein. 705 ILCS 405/1--1 et
seq. (West 1996). Subject matter jurisdiction is the power of the
court to consider the general issue before the court and to grant
the particular relief requested. In re M.M., 156 Ill. 2d 53, 64
(1993). Any act exceeding that power is void. M.M., 156 Ill. 2d
at 64. Contrary to DCFS's assertion, except in cases involving
administrative review, circuit court jurisdiction is conferred by
the Illinois constitution. In re Lawrence M., 172 Ill. 2d 523, 529
(1996). However, the fact that circuit court jurisdiction is
constitutionally derived does not permit a juvenile court to exceed
its statutorily prescribed authority. Lawrence M., 172 Ill. 2d at
529.
Resolution of this issue hinges upon the interpretation of the
Act. The primary rule of statutory construction is to effectuate
the legislature's intent. In re A.P., No. 81022, slip op. at 8
(Ill. Sup. Ct. November 20, 1997). In ascertaining the
legislature's intent, courts examine the plain language of the
statute. A.P., No. 81022, slip op. at 8. Section 2--28(2) of the
Act authorizes a juvenile court to hold permanency review hearings
"until the court determines that the plan and goal have been
achieved." 705 ILCS 405/2--28(2) (West 1996). A permanency review
hearing is defined as:
" A hearing to review and determine (i) the appropriateness
of the permanency goal in light of the permanency
alternatives, (ii) the appropriateness of the plan to
achieve the goal, (iii) the appropriateness of the services
delivered and to be delivered to effectuate the plan and
goal, and (iv) the efforts being made by all the parties to
achieve the plan and goal." (Emphasis added.) 705 ILCS
405/1--3(11.2) (West 1996).
Section 2--23(3) authorizes a juvenile court to "enter any other
orders necessary to fulfill the service plan." (Emphasis added.)
705 ILCS 405/2--23(3) (West 1996).
Ordinarily, our review of interlocutory orders is limited to
a determination of whether a court has abused its discretion in
granting or refusing the relief requested. Lawrence M., 172 Ill. 2d at 526. However, when determining whether a trial court acted
within its authority, a reviewing court may examine substantive
issues. Lawrence M., 172 Ill. 2d at 526. In this case, we are not
bound by the traditional standard of review governing interlocutory
orders and may consider the substantive issues because we are
determining whether the juvenile court exceeded its authority under
the Act. See Lawrence M., 172 Ill. 2d at 526.
Before examining the grounds for the juvenile court's
authority to enter the order, we will briefly assess the statutory
basis for bringing a petition for change of foster placement and
the juvenile court's authority for reviewing the petition.
Respondent argues that section 2--28(4) allows any interested party
to submit such a petition. DCFS responds that a petition for
change of foster placement is not authorized under this provision
of the Act. Section 2--28(4) provides in relevant part:
"The minor or any person interested in the minor may apply
to the court for a change in custody of the minor and the
appointment of a new custodian or guardian of the person or
for the restoration of the minor to the custody of his
parents or former guardian or custodian." 705 ILCS 405/2--
28(4) (West 1996).
Although any interested person may apply for a change in custody
under this provision, it has not been interpreted to permit only a
change in physical custody. See In re Chiara C., 279 Ill. App. 3d
761, 766 (1996) (section 2--28(4) does not authorize a court to
change physical custody absent a change in legal custody). In
addition, respondent has petitioned for neither the appointment of
a new legal custodian nor the restoration of the minors to her
custody. While respondent's petition cannot be brought under
section 2--28(4), it can be construed as seeking review of the
efforts made to achieve the goal of returning the minors to
respondent because it raises questions concerning the placement of
the minors in the Turners' foster home and the Turners' attempts to
support this goal. See 705 ILCS 405/1--3(11.2), 2--28(2) (West
1996).
DCFS argues that respondent's petition cannot be interpreted
as seeking a review of the propriety of the permanency goal
pursuant to section 2--28(2). DCFS's argument, although valid, is
not dispositive of this issue. Section 2--28(2) does not limit a
juvenile court's inquiry to a review of the permanency goal.
Rather, it confers upon the juvenile court the authority to conduct
permanency review hearings. See 705 ILCS 405/2--28(2) (West 1996).
These hearings may also include a juvenile court's review of the
efforts made towards achieving the permanency goal and satisfying
the service plan. See 705 ILCS 405/1--3(11.2) (West 1996).
Although respondent's petition was not a request to review the
permanency goal, we construe her petition as a request to review
the efforts made towards returning the minors to her care.
We interpret the juvenile court's hearing on respondent's
petition to be a "permanency review hearing." See 705 ILCS 405/1--
3(11.2) (West 1996); Chiara C., 279 Ill. App. 3d at 766. In Chiara
C., the reviewing court found that the juvenile court proceeding,
although not labelled a permanency review hearing, was equivalent
to such a hearing because its purpose was to review the propriety
of the minor's residential and educational services. Chiara C.,
279 Ill. App. 3d at 766. Similarly, although the juvenile court's
hearing on the petition in the case sub judice was not designated
a "permanency review hearing," it can be classified as such because
the court reviewed the efforts made to satisfy the service plan and
permanency goal. See 705 ILCS 405/1--3(11.2) (West 1996); Chiara
C., 279 Ill. App. 3d at 766. Specifically, the juvenile court
found that while A.L. and T.L. were in the care of their foster
parents, they had not progressed towards the ultimate goal of
returning to respondent. Accordingly, because section 2--28(2)
allows the juvenile court to hold a permanency review hearing to
assess the progress made towards achieving the plan and goals set
by DCFS, the juvenile court was statutorily authorized to hold such
a hearing. See 705 ILCS 405/1--3(11.2), 2--28(2) (West 1996).
We next examine the juvenile court's authority to enter the
order requesting removal and transfer of the minors. We find that
the juvenile court was authorized to enter an order requesting DCFS
to remove and transfer the minors from the Turners' foster home.
The prevailing purpose of the Act is to serve the best interests of
the minor (705 ILCS 405/1--2(1) (West 1996); In re R.G., 283 Ill.
App. 3d 183, 186 (1996)), and the provisions of the Act must be
construed liberally to effectuate this purpose (705 ILCS 405/1-2(4)
(West 1996); Lawrence M., 172 Ill. 2d at 530). Specifically,
section 2--23(3) states that "[t]he court also shall enter any
other orders necessary to fulfill the service plan ***." (Emphasis
added.) 705 ILCS 405/2--23(3) (West 1996). After reviewing the
record, we find that the juvenile court examined the efforts made
towards achieving the service plan and found it necessary to enter
an order to accomplish the goal set forth in the service plan--the
minors' return home to respondent. The record reveals that the
juvenile court was acting in the best interests of the minors.
When viewing the hearing and the juvenile court's order in light of
the overriding purpose of the Act, we read section 2--23(3) of the
Act as conferring the authority upon the juvenile court to enter
the order removing A.L. and T.L. from the Turners' foster home and
requesting DCFS to select alternative placement. See 705 ILCS
405/2--23(3) (West 1996).
DCFS's argument that the Act does not expressly authorize a
juvenile court to make specific placements, while accurate, is
misplaced. As support for its argument, DCFS relies upon In re
R.M., 288 Ill. App. 3d 811 (1997) and In re M.V., 288 Ill. App. 3d
300 (1997). At issue in these cases is whether a juvenile court
exceeds its statutory authority when it orders the removal and
specific placement of a minor. In R.M., the juvenile court ordered
the removal of a minor from one foster parent and her placement
with specific foster parents. The reviewing court found that the
juvenile court lacked the statutory authority to order the removal
and specific placement of the minor. R.M., 288 Ill. App. 3d at
820. Similarly, in M.V., the reviewing court found that the
juvenile court exceeded its statutory authority when it ordered
specific placement with the minor's former foster parents. M.V.,
288 Ill. App. 3d at 307.
Unlike these cases, the juvenile court in this case did not
order specific placement of the minors. Instead, it ordered DCFS
to remove the minors from the foster care of the Turners and to
select alternative placement. There is a distinction between the
juvenile court making a specific placement and requiring DCFS to
find alternative placement for the minors. While we recognize that
there are limited instances in which a juvenile court is authorized
to make specific placements pursuant to the Act, these provisions
are inapplicable in this instance. See, e.g., 705 ILCS 405/2--
23(1) (West 1996) (juvenile court may order placement in accordance
with placement options set forth in section 2--27(1)); 705 ILCS
405/1--5(2)(b) (West 1996) (juvenile court may order placement upon
intervention by the foster parent when an application to restore
minor to any parent, guardian, or legal custodian who caused the
neglect or inflicted the abuse has been made); 705 ILCS 405/2--
10(2) (West 1996) (juvenile court may order shelter care placement
upon a finding of "immediate and urgent necessity" following a
temporary custody hearing). Accordingly, DCFS's reliance on these
provisions to show that the juvenile court exceeded its authority
is unpersuasive.
DCFS's argument that placement with a specific foster parent
is analogous to removal from a specific foster parent is likewise
unavailing. DCFS relies upon In re R.M., 288 Ill. App. 3d 811
(1997), as support for the proposition that a juvenile court lacks
the authority to remove a minor from a specific foster parent. In
R.M., the foster parent had initiated a service appeal, an appeal
challenging the placement of a minor pursuant to section 5(o) of
the Children and Family Services Act (20 ILCS 505/5(o) (West
1996)). A hearing officer determined that the minor could return
to her foster parent's care. In lieu of completing the service
appeal process, the guardian ad litem filed an emergency motion
that challenged the hearing officer's decision. Subsequently, the
juvenile court held an emergency hearing on the motion and ordered
the minor's removal from the foster parent and specific placement
in another foster home. The reviewing court found that the
juvenile court's emergency hearing did not constitute a permanency
review hearing. R.M., 288 Ill. App. 3d at 819. Thus, not only was
the juvenile court not authorized to hold the emergency hearing,
but it also exceeded its authority when it ordered the removal and
specific placement. R.M., 288 Ill. App. 3d at 820.
Unlike R.M., no service appeal process had been initiated in
this case. Moreover, the juvenile court's hearing on respondent's
petition was equivalent to a permanency review hearing and
therefore statutorily authorized. Finally, in R.M. the removal was
ordered in conjunction with specific placement (R.M., 288 Ill. App.
3d at 820), as opposed to alternative placement in this case.
We briefly note that during oral argument DCFS maintained that
section 2 23(3) expressly prohibits specific placement. Our
disposition, however, is unaffected because of our finding that an
order requiring specific placement differs from an order directing
removal and alternative placement.
Contrary to DCFS's assertion, the juvenile court did not usurp
a function within DCFS's authority and discretion. Rather, the
juvenile court's order allows DCFS to exercise its discretion in
selecting the appropriate foster placement. Not only was the
juvenile court's order within the confines of the Act (see 705 ILCS
405/2--23(3) (West 1996)), but it also continues to afford DCFS
discretion in performing its functions. Accordingly, we find that
the juvenile court was statutorily authorized to order the removal
and transfer of the minors from the Turners' foster home. As such,
we affirm the juvenile court's order.
For the foregoing reasons, the judgment of the circuit court
of Du Page County is affirmed.
Affirmed.
DOYLE and COLWELL, JJ., concur.