Filed May 25, 2010
APPELLATE COURT OF ILLINOIS
In re M.P.,
) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
) Peoria County, Illinois,
(The People of the State of
) No. 07--JA--288
Debra P. and Darold P.,
) Kim L. Kelley,
) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
On October 23, 2008, the trial court granted the State's
motion for change of placement of the minor, M.P., from the
foster home of respondents, Debra P. and Darold P.
filed a motion to intervene, which was denied.
filed a motion to reconsider the denial of the motion to
intervene and vacate the change of placement order, pursuant to
section 2--1401 of the Code of Civil Procedure (Code)
5/2--1401 (West 2008)).
Respondents argued that the change of
placement was void because they received inadequate notice of the
The trial court denied the respondents' section
On appeal, respondents argue that the
October 23, 2008, change of placement order was void because: (1)
respondents did not receive adequate notice; and (2) the court
lacked authority to remove the minor from foster placement with
This matter came to the attention of the Department of
Children and Family Services (DCFS) on October 29, 2007, when
M.P. arrived in the emergency room with abdominal injuries
requiring several surgeries and a month-long hospital stay.
December 4, 2007, the State filed a juvenile petition alleging
that M.P. was abused and neglected.
The trial court granted DCFS
temporary custody of M.P., who was placed into relative foster
care with her maternal grandparents, the respondents.
Catherine Shockley of Counseling and Family Services (CFS)
was assigned as the caseworker.
After their initial meeting at
the respondents' home, respondents would not allow Shockley into
their home because they claimed she was rude, disrespectful, and
On February 8, 2008, a notice to remove M.P. was
given to the respondents by either CFS or DCFS.
administratively appealed the removal decision, and a clinical
review was scheduled.
In the interim, on March 13, 2008, the
trial court ordered respondents to allow Shockley into their home
or risk having M.P. removed.
On March 26, 2008, at the DCFS
clinical review, all parties agreed that the case would be
transferred to another agency.
On April 17, 2008, M.P. was adjudicated abused and
On May 15, 2008, at the dispositional hearing, the
trial court made M.P. a ward of the court and granted DCFS
guardianship, with the right to place.
The order indicated that
respondents were to "cooperate fully and completely with [the]
The permanency goal was set as returning M.P. home to
her father, George C., within five months.
An initial permanency
review hearing was set for October 23, 2008.
After the case was transferred, the new caseworker, Nicole
Friend, opined in a permanency review report that "[g]iven the
history of this foster home with the previous agency and
[respondents'] lack of cooperation and communication," it was
difficult to work with them.
On October 20, 2008, the State
filed a motion for change of placement, alleging that: (1)
respondents refused to allow a prior caseworker into their home
until ordered to do so on March 13, 2008; (2) the dispositional
order of May 15, 2008, indicated that respondents were to
"cooperate fully and completely with [the] agencies"; (3) after
M.P. was placed with respondents, Darold refused to meet with the
caseworker and Debra was uncommunicative; and (4) Darold failed
to report that M.P. became upset before visits with her father,
was left with babysitters during visits, and returned "smelly and
On October 23, 2008, the court heard the State's change of
placement motion and conducted a permanency review hearing.
court acknowledged that the State filed "a Motion for Change of
Placement on October 20th, 2008, called it up for today's
hearing, sent notice to all counsel of record, parties of record,
and to the foster parents."
Friend testified that although she did not have any concerns
as to M.P.'s physical safety, she was concerned with "how
[Darold] react[ed] to things" and "[t]he fact that [respondents]
haven't continued to cooperate the entire time." Friend felt that
M.P. was happy, but the fact that she played through Darold's
yelling without getting upset indicated to her that Darold likely
raised his voice on a regular basis.
Friend believed that M.P.
was well bonded to respondents and moving her out of respondents'
home "would have an impact [on M.P.] but she would adapt."
Friend recommended that M.P. be removed from respondents' home
and placed in a nonrelative home.
The court acknowledged that since the motion for change of
placement affected the foster parents, it was appropriate "to
give them an opportunity, if they wish[ed], to state anything in
defense against the motion."
After Debra testified relevant to
the specific allegations in the motion, the trial court asked
Debra, "Anything else you want to tell me?"
Debra replied that
she and Darold loved M.P. and that the caseworker had even noted
how much the respondents loved M.P., and "it would damage [M.P.]
to be removed from the only family that she has been close to."
Debra also confirmed that she and Darold were relative foster
parents and not licensed foster parents.
They were willing to
become licensed foster parents and do whatever it took to take
care of M.P.
The trial court asked Darold if there was anything about the
allegations in the motion that he wanted to tell the court.
Darold testified in regard to the allegations.
Darold also told
the court that he loved M.P. and that he and M.P. were together
from the time she woke up until the time his wife got home from
The trial court asked if Darold would like to say anything
else, but he declined.
The trial court granted the State's motion for change of
placement on the basis of the "disobedience of repeated orders to
co-operate; not [being] trustworthy; [and] not serving the best
interest of the child."
Respondents were granted supervised
visits with M.P. once per month for one hour.
Also, the trial
court found George C. was dispositionally unfit and changed the
permanency goal from return home within five months to return
home within one year.
On December 5, 2008, respondents filed a motion for an order
granting standing and intervenor status.
In the motion,
respondents argued that they did not receive adequate notice of
the State's change of placement motion and, as a result, were
unable to hire an attorney.
On January 15, 2009, the trial court
denied respondents' motion.
On February 13, 2009, respondents filed a motion to reconsider the denial of their motion to intervene and to vacate the
change of placement order, pursuant to section 2--1401 of the
Code (735 ILCS 5/2--1401 (West 2008)).
argued that the order granting the State's request for change of
placement was void, or in the alternative should be vacated, and
that they should be allowed to intervene in the case.
dents claimed they received less than 24 hours' notice prior to
the change of placement hearing.
Also, respondents claimed that
the State concealed the inadequate notice with a "fraudulent
Proof of Service."
On April 2, 2009, the trial court denied the motion to
vacate, finding there was no just reason for delaying an appeal
of the order under Rule 304(a) (210 Ill. 2d R. 304(a)).
the trial court ordered that respondents were permitted to
intervene and noted that "they [were] now parties."
On April 30, 2009, respondents filed an appeal of the trial
court's April 2, 2009, order denying their motion to vacate the
October 23, 2008, change of placement order.
On appeal, respondents argue that the trial court erred in
denying their section 2--1401 motion to vacate the October 23,
2008, order because the order was void in that: (1) the State
failed to provide adequate notice of the change of placement
proceedings; and (2) the court did not have the authority to
remove M.P. from their care.
Section 2--1401 establishes a
statutory procedure that permits a final judgment that is older
than 30 days to be vacated.
735 ILCS 5/2--1401 (West 2008).
obtain relief under section 2--1401, a defendant must set forth
factual allegations showing: (1) the existence of a meritorious
claim; (2) due diligence in presenting the claim; and (3) due
diligence in filing the section 2--1401 petition.
Pinkonsly, 207 Ill. 2d 555, 802 N.E.2d 236 (2003).
When a trial
court enters either a judgment on the pleadings of a section 2-1401 petition or a dismissal of a section 2--1401 petition, we
review the order under a de novo standard.
People v. Vincent,
226 Ill. 2d 1, 871 N.E.2d 17 (2007).
I. Denial of Motion to Vacate
First, respondents claim that the State's failure to give
them proper notice of the change of placement motion violated
their due process rights and rendered the order void.
supreme court has held that the failure to give proper notice of
juvenile proceedings to parents of a minor and to any necessary
parties is a due process violation of the parents' constitutional
In re A.H., 195 Ill. 2d 408, 748 N.E.2d 183 (2001).
However, foster parents are not considered necessary parties who
have a due process right to proper notice of the proceedings.
A.H., 195 Ill. 2d 408, 748 N.E.2d 183; 705 ILCS 405/1--1 et seq.
(West 2008) (providing that necessary parties include parents or
legal guardians but not foster parents).
Nonetheless, under the Juvenile Court Act of 1987 (Act) (705
ILCS 405/1--1 et seq. (West 2008)), respondents had a statutory
right to adequate notice and a statutory right to be heard.
Pursuant to section 1--5(2)(a) of the Act, "any current or
previously appointed foster parent *** interested in the minor
has the right to be heard by the court, but does not thereby
become a party to the proceeding."
705 ILCS 405/1--5(2)(a) (West
"In addition[,] *** any current foster parent *** shall
be given adequate notice at all stages of any hearing or
proceeding under this Act."
705 ILCS 405/1--5(2)(a) (West 2008).
Here, respondents did not receive adequate notice of the
change of placement motion as required by the Act.
respondents waived the issue by participating at the hearing and
failing to object to the inadequate notice.
See A.H., 195 Ill.
2d 408, 748 N.E.2d 183 (foster parents waived notice by failing
to object during the hearing and by testifying at the continued
hearing the following day).
Respondents were present at the
hearing and did not request a continuance or object to the
Additionally, respondents were not prejudiced
because they were given a full opportunity to exercise their
right to be heard.
The record demonstrates that the court gave
each respondent an opportunity to tell the court anything he or
she wished and respondents each did so.
both harmless and waived.
Therefore, any error was
See A.H., 195 Ill. 2d at 424, 748
N.E.2d at 193.
II. Authority to Remove M.P. From Foster Placement
Respondents also argue that the October 23, 2008, order was
void or should be vacated because the court did not have
authority to order a change of placement and removal of M.P. from
Courts do not have original jurisdiction over the removal of
a child from his parents based upon abuse, neglect, or dependency
because the issue was not known at common law.
408, 748 N.E.2d 183.
A.H., 195 Ill. 2d
However, through the Act the legislature
has conferred limited jurisdiction of such matters on the circuit
A.H., 195 Ill. 2d 408, 748 N.E.2d 183.
court's power to act is purely statutory, and "'[a]ny action
taken by the circuit court that exceeds its jurisdiction is void
and may be attacked at any time.'"
A.H., 195 Ill. 2d at 416, 748
N.E.2d at 189, quoting In re Estate of Gebis, 186 Ill. 2d 188,
193, 710 N.E.2d 385, 387 (1999).
The purpose of the Act is to serve the best interest of the
705 ILCS 405/1--2(1) (West 2008).
Under section 2--28(2)
of the Act, a juvenile court is authorized to hold permanency
review hearings until the service plan and permanency goal have
705 ILCS 405/2--28(2) (West 2008).
shall set a permanency goal that is in the best interest of the
705 ILCS 405/2--28(2) (West 2008).
In setting the
permanency goal, the court shall consider, among other things,
the following factors: (1) the age of the child; (2) the options
available for permanence; (3) the current placement and intent of
family regarding adoption; and (4) the emotional, physical, and
mental status or condition of the child.
705 ILCS 405/2--28(2)
Permanency review hearings may include a review of the
efforts made toward achieving the permanency goal and service
705 ILCS 405/1--3(11.2) (West 2008).
Also, section 2--
23(3) of the Act authorizes the juvenile court to enter any other
orders necessary to fulfill the service plan.
23(3) (West 2008).
705 ILCS 405/2--
However, the court is not empowered to order
specific placements to be included in the plan.
705 ILCS 405/2--
23(3) (West 2008); see also In re R.M., 288 Ill. App. 3d 811, 681
N.E.2d 652 (1997); In re M.V., 288 Ill. App. 3d 300, 681 N.E.2d
A change of placement request can be construed as seeking a
review of efforts made to achieve the permanency goal and a
foster parent's effort to support the permanency goal.
A.L., 294 Ill. App. 3d 441, 689 N.E.2d 1167 (1998).
State's request for change of placement was essentially a request
for a review of the respondents' efforts toward achieving the
We acknowledge that under section 2--23(3) of the Act, a
trial court lacks the statutory authority to order specific
placement of a minor with a specific foster family.
case, the court did not order a specific placement but ordered
that M.P. be removed from respondents' home and "placed
See A.L., 294 Ill. App. 3d 441, 689 N.E.2d 1167
(distinguishing an order for removal for unspecified alternate
placement from an order for specific placement).
find the court was authorized in addressing the change of
placement motion and determining whether it was in M.P.'s best
interest to remove her from respondents' foster care.
the court's change of placement removal order was not void.
Consequently, the respondents failed to set forth factual
allegations showing the existence of a meritorious claim in their
section 2--1401 petition.
As a result, we find that the trial
court did not err when it denied respondents' motion to vacate
the change of placement order of October 23, 2008.
we deny respondents' request that this court "reverse the order
changing the placement of [M.P.], and remand the case with the
directions to return the minor to the custody of the
The judgment of the circuit court of Peoria County is
McDADE and O'BRIEN, JJ., concur.