Benz v. The Department of Children and Family Services , 2015 IL App (1st) 130414 ( 2015 )

Illinois Official Reports
Appellate Court
Benz v. Department of Children & Family Services, 2015 IL App (1st) 130414Appellate Court MICHAEL T. BENZ and LYNN M. BENZ, Plaintiffs-Appellants, v.
Caption THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
RICHARD CALICA, DIRECTOR OF CHILDREN AND FAMILY
SERVICES, and STEVEN JAFFE, not individually but solely as
Guardian Ad Litem for J.C., Defendants-Appellees.
District & No. First District, Fifth Division
Docket No. 1-13-0414
Filed February 6, 2015
Held On appeal from the circuit court’s order affirming the determination of
(Note: This syllabus the Department of Children and Family Services that a minor who had
constitutes no part of the been removed from the plaintiff foster parents’ home should remain
opinion of the court but with a relative, the appellate court found that the plaintiffs’ due
has been prepared by the process claims were moot where the relative’s adoption of the minor
Reporter of Decisions became finalized and the public interest exception to the mootness
for the convenience of doctrine did not apply.
the reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CH-43956; the
Review Hon. Neil Cohen, Judge, presiding.
Judgment Affirmed.
Counsel on Michael T. Benz, of LaGrange, and Law Offices of Theodore J.
Appeal Adams, P.C., of Rosemont (Theodore J. Adams, of counsel), for
appellants.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Laura Wunder, Assistant Attorney General, of
counsel), for appellees.
Panel PRESIDING JUSTICE PALMER delivered the judgment of the court,
with opinion.
Justices McBride and Gordon concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs, Michael and Lynn Benz, served as foster parents for the minor, J.C., for
approximately nine months. Following removal of the minor by the Department of Children
and Family Services (DCFS), plaintiffs unsuccessfully pursued an administrative appeal, and
then sought administrative review in the circuit court. Plaintiffs appeal from the circuit court’s
decision affirming DCFS’s final administrative determination that J.C. should remain with a
relative in Tennessee, Angela B. Plaintiffs concede that during the pendency of this case,
Angela B.’s adoption of J.C. became finalized. As in the circuit court, the State maintains on
appeal that plaintiffs’ claims are moot.1 Plaintiffs argue the public interest exception to the
doctrine of mootness applies in this case and this court should therefore review their claims.
¶2 I. BACKGROUND
¶3 We recognize that this case involves an extensive record from the circuit court and
administrative proceedings below. However, given our ultimate resolution of the case, we
discuss the facts only to the extent necessary to resolve the dispositive issues on appeal.
¶4 J.C. was born on July 29, 2009, and taken into protective custody by DCFS on October 17,
2009, after his biological mother was arrested.2 His father was incarcerated at the time. J.C.
was placed in foster care with plaintiffs on October 28, 2009, with the initial goal being to
return J.C. home to his biological mother. However, J.C.’s mother died on March 4, 2010, of a
drug overdose. J.C.’s caseworker with Child Link, the welfare agency contracted with DCFS,
asked plaintiffs whether they would be interested in adopting J.C., and they indicated that they
were willing to do so. However, Angela B., a paternal relative of J.C. who lived in Tennessee,
contacted Child Link regarding having J.C. placed with her, and Child Link began the process
1
We note that the guardian ad litem for the minor was dismissed as a party to this appeal.
J.C.’s half brother was also taken into protective custody and placed with the half brother’s
2
paternal grandmother.
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of creating an interstate compact placement for J.C. In addition, J.C.’s biological father was
released from prison and began to have supervised visits with J.C.
¶5 J.C. lived with plaintiffs for approximately nine months until he was removed on July 19,
2010, following an incident in plaintiffs’ home on Saturday, July 17, 2010, when he was
burned by a hot curling iron while being supervised by plaintiffs’ 22-year-old daughter.
Plaintiffs left a message on the office phone of J.C.’s Child Link caseworker, Melissa
Rodriguez, regarding the incident, but did not contact Rodriguez on her cellular telephone or
call Child Link’s after-hours emergency number. In addition, plaintiffs took J.C. to a friend
and neighbor who was a doctor for treatment, instead of taking him to an emergency room.
Plaintiffs also canceled J.C.’s scheduled visit with his biological father the next day.
¶6 Upon learning of the injury, Rodriguez was instructed by her program director, Ayanna
Sims, to call the state hotline and report the incident. Rodriguez went to plaintiffs’ home to
view the injury and then brought J.C. to the emergency room for evaluation on July 19, 2010.
¶7 Also on July 19, Sims decided that J.C. had to be removed from plaintiffs’ home based on
the recommendation of the supervisor of the Department of Child Protection (DCP), Marnita
Martin-Harris. They believed J.C. was in imminent risk of harm and the circumstances
necessitated further investigation.
¶8 While at the hospital, a worker from DCFS arrived and informed Lynn Benz that J.C. was
being removed pending investigation because he had been injured in the home. J.C. was placed
in an emergency respite foster home for a few days and later placed with his paternal
grandfather and the grandfather’s ex-wife. Rodriguez prepared an “unusual incident report” on
July 23, 2010.
¶9 Plaintiffs received a “notice of change of placement” on July 24, 2010, which indicated
that J.C. was removed because he suffered second-degree burns, prompting an investigation.
The State concedes that, although the notice was dated July 19, 2010, the envelope was
postmarked July 23, 2010, and Rodriguez and Sims had backdated the notice to July 19 even
though they prepared it after that date.
¶ 10 DCFS initiated an investigation of plaintiffs. 3 In addition, Child Link conducted a
licensing investigation of plaintiffs, but ultimately found no licensing violations.
¶ 11 Following J.C.’s removal, plaintiffs pursued an administrative appeal for his return.
Plaintiffs requested a clinical placement review and an emergency review. See 89 Ill. Adm.
Code 337.30, amended at 36 Ill. Reg. 4388 (eff. Mar. 7, 2012). Reviewer Belinda White
refused plaintiffs’ request for a separate emergency review.
¶ 12 The clinical placement review occurred on August 5, 2010. White issued her findings and
recommendation on August 12, 2010. White held that although plaintiffs received written
notice a few days after J.C. was removed, plaintiffs acknowledged that they were nevertheless
orally informed at the time of removal that he was being removed due to the burns he received
while in their care. White observed that plaintiffs had provided a caring home, but there were
concerns regarding the burn incident: plaintiffs should have taken him to the hospital and not
sought care from a neighbor, plaintiffs failed to timely inform Child Link of the injury, and
they should not have canceled the visit with his biological father without authorization. White
3
DCFS eventually sent a letter to plaintiffs on October 7, 2010, indicating that their investigation of
the report of suspected child abuse or neglect was determined to be “unfounded.”
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concluded that J.C. was at imminent risk of harm prior to removal. She determined that, as J.C.
had been moved on multiple occasions, he should remain with his paternal grandfather while
his biological father worked toward reunification. She recommended that if J.C. were to be
moved again, he should live with his relatives in Tennessee.
¶ 13 Following the clinical placement review, plaintiffs requested a service appeal on August
17, 2010. Plaintiffs also filed an emergency motion to remand to the clinical placement
reviewer in order to receive an emergency review. Administrative law judge Lola Fahler
denied the motion upon finding that when the change of placement of a child is challenged, the
statutorily provided procedure consisted of a clinical placement review followed by a service
appeal, and the child shall be placed in accordance with that decision while the appeal is
pursued.
¶ 14 The administrative hearing regarding plaintiffs’ service appeal before Judge Fahler
occurred over several days spanning several months from December 2010 through July 2011.
Plaintiffs presented the testimony of several witnesses and presented numerous exhibits. Judge
Fahler issued her written recommendation on August 31, 2011. Judge Fahler found that
plaintiffs were initially a short-term placement for the minor as there were no relatives who
were willing or able to care for him, and when J.C.’s biological mother died, Rodriguez asked
plaintiffs if they were interested in adopting J.C. However, relatives of J.C.’s biological father
then contacted Rodriguez and expressed a desire to have J.C. placed with them, and J.C.’s
father was released from jail and began supervised visits with the minor.
¶ 15 With respect to the incident in which J.C. was burned, Judge Fahler expressed concern that
plaintiffs did not contact Rodriguez on her cellular telephone or call Child Link’s emergency
number to report the incident, they left a message about the incident on Saturday night on
Rodriguez’s office telephone, they did not take him to the emergency room, and they canceled
the scheduled visit with his biological father the next morning. Judge Fahler found that after
Rodriguez visited J.C. in plaintiffs’ home, she consulted with Sims and Martin-Harris, and it
was decided that J.C. would be removed pending investigation, and Lynn Benz was informed
at the hospital on July 19 that J.C. was being removed. Judge Fahler found that Rodriguez and
Sims falsely backdated the notice of change of placement to July 19, 2010.
¶ 16 In addition, Judge Fahler found that, in performing the clinical placement review, White
was not aware that J.C.’s grandfather was disabled and that White was informed by Child
Link’s chief executive officer that there was possible collusion by Child Link staff, but White
did not pursue these allegations before rendering her decision. Judge Fahler found White’s
testimony not credible at the administrative hearing. Judge Fahler explained that the evidence
showed that Child Link sent an email to plaintiffs in August 2010 indicating that Sims had
recommended that J.C. be returned. In August 2010, the case was transferred from Child Link
to Volunteers of America, and the new caseworker was not aware of Child Link’s plan to
return J.C. to plaintiffs. Volunteers of America determined that it was not appropriate to move
J.C. because he was living with relatives. J.C.’s biological father planned to move to
Tennessee, and he expressed a desire for J.C. to be placed with relatives in Tennessee. J.C.
began extended visits with Angela B., and J.C. was placed there on March 18, 2011. Judge
Fahler found that there were concerns with J.C.’s placement with his grandfather and the
grandfather’s ex-wife because the sleeping arrangements for J.C. were not appropriate, the
home was owned by the ex-wife, and the grandfather was disabled and unable to adopt J.C. on
his own. Based on the foregoing, Judge Fahler held that White’s decision was not consistent
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with J.C.’s needs regarding safety, well-being, and permanency. Judge Fahler recommended
that J.C. be returned to plaintiffs.
¶ 17 Meanwhile, as plaintiffs’ administrative case was proceeding, there was also an ongoing
juvenile court case involving the minor. 4 As stated, J.C. began visits with Angela B. in
November 2010, and on March 18, 2011, the juvenile court entered an order placing J.C. in
Angela B.’s home. J.C.’s biological father died from a drug overdose in July 2011. Thereafter,
Angela B. sought to adopt J.C. On September 30, 2011, the juvenile court entered orders
terminating the parental rights of J.C.’s biological parents and setting adoption as the
permanency goal.
¶ 18 With respect to plaintiffs’ administrative proceedings, having received Judge Fahler’s
recommendation, the Acting Director of DCFS, Jean Ortega-Piron, decided on October 14,
2011, to remand the case in order to conduct an independent assessment of J.C.’s then-current
best interests as he had been living with Angela B. since March 2011. Thereafter, an
independent review was performed by the Juvenile Protective Association (JPA). The JPA
reviewed the case documentation and interviewed plaintiffs, Angela B., and others and issued
a detailed report on November 14, 2011. The report concluded that J.C. had formed a strong
bond with Angela B. and should remain with her.5
¶ 19 In light of the JPA’s assessment, Ortega-Piron issued a written final administrative
decision on November 21, 2011, finding that it was in J.C.’s current best interests to remain
with Angela B. in Tennessee, given that J.C. had been placed with Angela B. since March 18,
2011, he had formed a strong attachment to her, Angela B. was committed to keeping him, and
considering his age and prior upheavals, it was critical that he be able to preserve and build on
his bond with Angela B.
¶ 20 Following Ortega-Piron’s final determination, plaintiffs filed a complaint for
administrative review in the circuit court in December 2011. In their subsequently amended
complaint, plaintiffs asserted that the administrative proceedings violated their procedural due
process rights based on (1) removal of J.C. from his “pre-adoptive” foster parents without
advance notice when he was not in imminent risk of harm; (2) failure of DCFS to conduct an
emergency review of its decision to remove J.C.; (3) delays in the administrative proceedings
in the service appeal which failed to adhere to the timelines set forth in DCFS regulations; and
(4) failure of the clinical placement review, service appeal, and final DCFS decision to comply
with Illinois law. Plaintiffs also claimed that Ortega-Piron’s decision should be reversed as it
was against the manifest weight of the evidence and contained errors of law, and that DCFS
should be sanctioned for arguments it advanced in the service appeal that were legally
erroneous.
¶ 21 On January 17, 2013, the circuit court entered an order affirming the DCFS Director’s
decision. The circuit court set forth a detailed statement of the facts and ultimately held that
plaintiffs’ due process claims were moot. Further, plaintiffs had not established that they
should be reviewed pursuant to the public interest exception to the mootness doctrine because
4
Angela B. filed a motion to obtain guardianship of J.C. in the juvenile proceedings and plaintiffs
moved to intervene in the proceedings, but the juvenile court denied both motions.
5
The report noted, however, that the circumstances of J.C.’s removal from plaintiffs had posed an
unjustified risk to his psychological well-being and could have been implemented in a different way to
allow for a transition period.
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plaintiffs had not made a clear showing that their case met the criteria for the exception. The
court indicated that J.C. had bonded with and was thriving with Angela B., with whom he had
been residing for two years, the court lacked the equitable power to make a placement decision,
and moving the minor at this point risked harming him.
¶ 22 Notwithstanding its mootness determination, the circuit court also held that plaintiffs failed
to establish that they had a protected liberty interest at stake, which was a necessary component
of their claimed due process violation. Even so, the court found that it was clear from the
record and transcripts that plaintiffs “had many opportunities to present evidence,
cross-examine witnesses, and inspect documents.” The court noted that plaintiffs were
“intensely thorough” in presenting their case and no evidence supported that they were denied
due process. The court held that Ortega-Piron’s decision was not clearly erroneous and that,
regardless of any procedural errors, the record “overwhelmingly demonstrates that it is in the
best interests of J.C. to remain in his current stable and loving environment.” Regarding
plaintiffs’ request for sanctions, the circuit court concluded that Illinois Supreme Court Rule
137 (eff. Feb. 1, 1994) was inapplicable because the rule only applied to certification of
pleadings by an attorney and did not apply to administrative proceedings.
¶ 23 Plaintiffs appeal from the circuit court’s order. The parties did not dispute that in May
2013, the court entered a final adoption judgment in which Angela B. became J.C.’s adoptive
parent, and J.C.’s guardianship and wardship were terminated and the juvenile case was
closed.
¶ 24 II. ARGUMENT
¶ 25 A. ILLINOIS SUPREME COURT RULE 341
¶ 26 As an initial matter, the State asserts that plaintiffs’ opening brief fails to comply with
Illinois Supreme Court Rule 341 (eff. Feb. 6, 2013) in several respects and this court should
therefore deny or limit its consideration of their appeal. The State contends that plaintiffs’ brief
is not double-spaced, is in less than 12-point font, uses excessive footnotes, contains a selective
and argumentative statement of facts, and fails to properly cite the record in the argument
section. See Ill. S. Ct. R. 341(a), (b)(1), (h)(6)-(7) (eff. Feb. 6, 2013).
¶ 27 We note that plaintiffs’ opening brief is 49 pages and it contains almost as many
single-spaced footnotes–48–in many of which plaintiffs make substantive arguments. The
supreme court rules provide that “[f]ootnotes are discouraged.” Ill. S. Ct. R. 341(a) (eff. Feb. 6,
2013). Further, “[s]ubstantive arguments may not be made in footnotes” and the court may
strike them from consideration. Technology Solutions Co. v. Northrop Grumman Corp., 356
Ill. App. 3d 380, 382 (2005). Plaintiffs’ brief also appears to be less than double-spaced. We
note that we previously denied plaintiffs’ motion to file a brief in excess of 75 pages with a
separate statement of facts that would not count toward the 50-page limit under Rule 341(b)(1).
Clearly, had plaintiffs incorporated these 48 single-spaced footnotes into the body of their
49-page brief, they would have exceeded the 50-page limit. This leads us to conclude that
plaintiffs were attempting to avoid this court’s ruling and the page limitation in Rule 341(b)(1)
through the use of footnotes and by failing to adhere to the double-spacing requirement.
Technology Solutions, 356 Ill. App. 3d at 383. Additionally, plaintiffs’ statement of facts
occasionally contains improper argument. Notwithstanding these deficiencies, we will address
the issues presented on appeal as they warrant further discussion and resolution. “If an
appellant’s brief violates the supreme court rules, this court has the authority to dismiss the
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appeal. [Citation.] However, Supreme Court Rule 341 is an admonishment to the parties, not a
limitation on the jurisdiction of the reviewing court, and the reviewing court has discretion in
order to reach a just result.” In re Jacorey S., 2012 IL App (1st) 113427, ¶ 17. However, we
“will disregard any inappropriate or unsupported material, and any substantive arguments
contained only in the footnotes.” John Crane, Inc. v. Admiral Insurance Co., 2013 IL App (1st)
093240-B, ¶ 29.
¶ 28 B. MOOTNESS
¶ 29 On appeal, plaintiffs contend that their procedural due process rights were violated because
(1) in contravention of the applicable administrative rules, J.C. was removed from their home
without prior written notice or a determination that he was at imminent risk of harm, and the
evidence did not show that he was in imminent risk of harm, (2) plaintiffs were entitled to, but
were denied, an emergency review of the decision to remove him, (3) the discretion of the
clinical placement reviewer was so limited as to render the review a sham proceeding, and (4)
DCFS failed to adhere to the statutory time limits for service appeals, which extended the
appeal process for approximately three years. Plaintiffs assert that they had a constitutionally
protected liberty interest at stake in proceedings related to removal of a foster child and this
liberty interest arose under state statutes and Administrative Code provisions. Further,
plaintiffs argue that the DCFS Director’s decision should be reversed as it was not based on the
record.
¶ 30 Similar to its arguments below, the State contends that, with the exception of the sanctions
issue, plaintiffs’ claims are moot because the minor’s adoption has since been finalized during
the pendency of this appeal. Plaintiffs concede that the minor has been adopted and cannot be
returned to them. However, they assert that this court should review the merits of their appeal
under the public interest exception to the doctrine of mootness. The State counters that the
public interest exception does not apply here to allow for this court’s review.
¶ 31 “As a general rule, courts in Illinois do not decide moot questions, render advisory
opinions, or consider issues where the result will not be affected regardless of how those issues
are decided.” In re Alfred H.H., 233 Ill. 2d 345, 351 (2009). Our supreme court has
“consistently held that ‘[a]n appeal is moot when it involves no actual controversy or the
reviewing court cannot grant the complaining party effectual relief.’ ” In re Marriage of
Donald B., 2014 IL 115463, ¶ 23 (quoting Steinbrecher v. Steinbrecher, 197 Ill. 2d 514,
522-23 (2001)). When such is the case, the court “will not review cases ‘merely to establish a
precedent or guide future litigation.’ ” Id. (quoting Madison Park Bank v. Zagel, 91 Ill. 2d 231,
235 (1982)). The court also generally avoids issuing an advisory opinion when “a case is
pending on appeal when the events that render an issue moot occur.” Id. Whether a claim is
moot is an issue we review de novo on appeal. Preferred Personnel Services, Inc. v. Meltzer,
Purtill & Stelle, LLC, 387 Ill. App. 3d 933, 938 (2009).
¶ 32 We agree with the circuit court and the State that, except for plaintiffs’ claim for sanctions,
the issues presented in plaintiffs’ appeal have been rendered moot by the finalization of J.C.’s
adoption. In the administrative appeal proceedings and in the circuit court, plaintiffs sought to
challenge the removal of J.C. and sought reversal of the various administrative decisions
against them in that regard. The parties agree that while this appeal was pending, J.C.’s
adoption by Angela B. was finalized. Given these circumstances, it would be impossible for
this court to grant plaintiffs effectual relief. In re Alfred H.H., 233 Ill. 2d at 352. We find that
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the issue has been rendered moot, and we decline to render an advisory opinion or render an
opinion merely to guide future litigation. In re Marriage of Donald B., 2014 IL 115463, ¶ 23.
¶ 33 Having concluded that the appeal before us is moot, we must now consider whether the
public interest exception to the mootness doctrine applies here. “The public interest exception
to the mootness doctrine allows a court to consider an otherwise moot issue when (1) the
question presented is of a substantial public nature; (2) there is a need for an authoritative
determination for the future guidance of public officers; and (3) there is a likelihood of future
recurrence of the question.” In re Marriage of Donald B., 2014 IL 115463, ¶ 33. As the public
interest exception “is construed narrowly, *** a clear showing of each criterion is required to
bring a case within its terms.” In re Adoption of Walgreen, 186 Ill. 2d 362, 365 (1999).
¶ 34 Although plaintiffs strenuously argue that this case involves legal questions which impact
numerous other “pre-adoptive” foster parents, considering the lengthy and unique procedural
circumstances of this case, we disagree with this assertion. The crux of plaintiffs’ argument is
not so much that the applicable administrative provisions and statutes themselves violate due
process, but that DCFS failed to comply with these provisions and thereby deprived plaintiffs,
specifically, of the proper notice and procedure to which they were entitled.
¶ 35 Our supreme court has directed that “when an opinion on a question of law cannot affect
the result as to the parties or controversy in the case before it, a court should not resolve the
question merely for the sake of setting a precedent to govern potential future cases.” In re
Adoption of Walgreen, 186 Ill. 2d at 365. Indeed, “[t]his limitation is no mere technicality. The
existence of a real controversy is a prerequisite to the exercise of our jurisdiction.” Id. “If all
that was required under this factor was that the opinion could be of value to future litigants, the
factor would be so broad as to virtually eliminate the notion of mootness.” In re Alfred H.H.,
233 Ill. 2d at 357.
¶ 36 For example, in In re Adoption of Walgreen, 186 Ill. 2d at 364, the Illinois Supreme Court
held that the issue of whether various provisions of the Adoption Act (750 ILCS 50/1 et seq.
(West 1992)) were unconstitutional was moot because the grandparents’ adoption of their
grandchildren became finalized during the pendency of the appeal. Even though the issue (the
constitutionality of the standards measuring the biological mother’s fitness) presented “a
question of substantial public interest,” the court declined to review the constitutional issue
under the public interest exception because there was no need for an authoritative
determination given that the law was not in disarray and there was no conflicting precedent.
In re Adoption of Walgreen, 186 Ill. 2d at 365-66. Because the adoption was finalized, the
constitutionality of the standards would “not be at issue again.” Id. at 366. Similar to the
circumstances here, the Walgreen court observed that “[t]he constitutionality of the fitness
provisions may still arise in other adoption cases. There is no reason to believe, however, that
the question cannot be fully litigated by the affected parties there. The long and complex
history of this case demonstrates that this is not the sort of dispute which is, by its nature, too
short in duration to be fully litigated prior to its cessation.” Id. See also In re Alfred H.H., 233
Ill. 2d at 358 (holding that the public interest exception to mootness did not apply because the
case did not involve a situation where the law was in disarray or there was conflicting
precedent).
¶ 37 Accordingly, we do not believe that this case falls within the narrow confines of the public
interest exception to mootness. Plaintiffs have failed to show “that there is a ‘need to make an
authoritative determination for future guidance of public officers.’ ” In re Alfred H.H., 233 Ill.
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2d at 357-58 (quoting In re Adoption of Walgreen, 186 Ill. 2d at 365). Additionally, with
respect to plaintiffs’ challenge that the Director’s final decision was clearly erroneous, our
supreme court has directed that “case-specific inquiries, such as sufficiency of the evidence, do
not present the kinds of broad public issues required for review under the public interest
exception.” In re Rita P., 2014 IL 115798, ¶ 36.
¶ 38 Moreover, even if we were to hold that the appeal was not moot or that the strict criteria for
the public interest exception were met, we would nevertheless conclude that plaintiffs have
failed to establish that they have a constitutionally protected liberty interest at stake. Plaintiffs
cite to Illinois statutes and the Administrative Code in support of their argument that they had a
constitutionally protected liberty interest. “However, for a statute to grant a person a protected
liberty interest, the person must have a legitimate claim of entitlement to the liberty interest.”
In re Adoption of C.D., 313 Ill. App. 3d 301, 313 (2000). In fact, Illinois case law makes clear
that such a liberty interest does not exist in the present circumstances. “[S]ince Illinois law
does not create an expectation of a continued relationship, foster parents have no
constitutionally protected liberty interest in the continued custody of their charges.” Johnson v.
Burnett, 182 Ill. App. 3d 574, 583 (1989). “The role of the foster parent, as envisioned by
Illinois law, is that of a temporary way station on the road of a child’s life until the difficulties
at home can be straightened out.” Id. at 582. Although parents have a fundamental liberty
interest in the “care, custody, and management” of their child, “[f]oster parents do not share
this liberty interest in the children for whom they care.” In re A.H., 195 Ill. 2d 408, 423 (2001).
Notwithstanding plaintiffs’ citation to cases from foreign jurisdictions, which are not
controlling here, plaintiffs have failed to demonstrate that Illinois law grants foster parents a
liberty interest in a continued relationship with a foster child under the present circumstances.
¶ 39 In ruling, we observe that a failure to provide timely notice to foster parents when
statutorily required may be deemed harmless, such as where the foster parent waives the issue
or otherwise appears and participates in the proceedings. In re A.H., 195 Ill. 2d at 424. In A.H.,
the guardian ad litem made an oral motion for removal of the foster child from the foster
parents, but our supreme court held that there was no due process violation because the foster
parents were not “necessary parties” entitled to notice of juvenile court proceedings under the
Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 1998)). In re A.H., 195 Ill. 2d at
423-24. Further, although the foster parent was statutorily entitled to proper notice, the failure
to provide it was harmless because the foster parent waived the issue when she failed to object
and then appeared the next day at the hearing regarding removal of the child. Id. at 424.
¶ 40 Having reviewed the voluminous record in this case, we agree with the circuit court that
plaintiffs were afforded sufficient procedural safeguards throughout the administrative and
circuit court proceedings. Although plaintiffs did not receive written notice until a few days
after J.C. was removed from their home, plaintiffs nevertheless were given oral notice that J.C.
was being removed when the DCFS worker informed Lynn Benz of this at the hospital on the
day of removal. Further, although plaintiffs’ requests for an emergency review were denied,
plaintiffs had the opportunity to challenge the decision to remove J.C. soon after it was made
during the clinical placement review, again during the administrative service appeal hearing,
and in the circuit court proceedings. Plaintiffs had the opportunity to present a plethora of
testimonial and documentary evidence, cross-examine witnesses, and present argument in
support of their claims.
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¶ 41 Based on this record, plaintiffs have not demonstrated that they had a protected liberty
interest or that their procedural due process rights were violated.
¶ 42 C. RULE 137 SANCTIONS
¶ 43 Plaintiffs also assert that they were entitled to sanctions against DCFS pursuant to Illinois
Supreme Court Rule 137. Plaintiffs assert that during the service appeal, DCFS advanced in
writing an argument that was legally erroneous and lacked a reasonable basis, i.e., that
plaintiffs were not entitled to an emergency review. The State argues that Rule 137 sanctions
do not apply to an improper filing in administrative review proceedings and sanctions were not
warranted as DCFS’s argument was not unreasonable.
¶ 44 Rule 137 provides that “every pleading submitted by a party represented by an attorney
[must] be signed by that attorney, the signature constituting a certification that the attorney has
read the pleading and that to his knowledge, the pleading is well grounded in fact and is
warranted by law.” Kensington’s Wine Auctioneers & Brokers, Inc. v. John Hart Fine Wine,
Ltd., 392 Ill. App. 3d 1, 15 (2009) (citing Ill. S. Ct. R. 137 (eff. Feb. 1, 1994)). The rule aims to
prevent parties from abusing the judicial process by filing vexatious or harassing actions
lacking legal or factual support. Reyes v. Compass Health Care Plans, 252 Ill. App. 3d 1072,
1078-79 (1993). “[T]he trial court must employ an objective standard and determine what was
reasonable at the time the party filed its pleading.” Kensington’s Wine Auctioneers, 392 Ill.
App. 3d at 18. The rule applies only to pleadings, motions, and other papers filed by a litigant.
Id. at 15. As such, “it does not authorize sanctions for all violations of court rules and acts of
misconduct.” Id. The party requesting sanctions bears the burden of showing that sanctions are
warranted. Reyes, 252 Ill. App. 3d at 1079. A circuit court’s decision whether to impose
sanctions pursuant to Rule 137 is reviewed for an abuse of discretion. Spiegel v. Hollywood
Towers Condominium Ass’n, 283 Ill. App. 3d 992, 1001 (1996). An abuse of discretion occurs
where the trial court “acted arbitrarily, without employing conscientious judgment, or whether,
in view of all the circumstances, the court exceeded the bounds of reason and ignored
recognized principles of law so that substantial prejudice resulted.” State Farm Fire &
Casualty Co. v. Leverton, 314 Ill. App. 3d 1080, 1083 (2000). Where the decision requires
interpretation of a supreme court rule, it involves a question of law subject to de novo review.
People v. Stefanski, 377 Ill. App. 3d 548, 550-51 (2007).
¶ 45 We conclude that the circuit court did not abuse its discretion in rejecting plaintiffs’ request
for sanctions. Supreme Court Rule 1 limits the applicability of the supreme court rules “to both
civil and criminal proceedings. The rules on proceedings in the trial court, together with the
Civil Practice Law ***, shall govern all proceedings in the trial court ***.” Ill. S. Ct. R. 1 (eff.
July 1, 1982). See Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill. 2d 342, 354 (2006) (“supreme
court rules, together with article II of the Code of Civil Procedure, i.e., the Civil Practice Law
(735 ILCS 5/1-101(b) (West 2002)), apply to all proceedings in the trial court”). With respect
to circuit court review of administrative proceedings, the supreme court dictates that litigation
commences and parties become “litigants” within the meaning of the rules when a plaintiff
files a complaint for administrative review in the circuit court. Rodriguez, 218 Ill. 2d at 354.
“Prior to plaintiff filing her complaint, no litigation existed, hence no litigants existed and,
hence, supreme court rules did not yet apply.” Id.¶ 46 In their petition for rehearing, the appellants reassert their position that the third paragraph
of Illinois Supreme Court Rule 137 provides a vehicle to claim sanctions for a “false
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argument” at the administrative level. Appellants cite no authority for this position and we do
not find it persuasive.6 Rule 137(c) provides:
“(c) Applicability to State Entities and Review of Administrative Determinations.
This rule shall apply to the State of Illinois or any agency of the State in the same
manner as any other party. Furthermore, where the litigation involves review of a
determination of an administrative agency, the court may include in its award for
expenses an amount to compensate a party for costs actually incurred by that party in
contesting on the administrative level an allegation or denial made by the State without
reasonable cause and found to be untrue.” Ill. S. Ct. R. 137(c) (eff. July 1, 2013).
¶ 47 Here, the trial court found, and we agree, that this provision does not provide a vehicle for
a sanction order that is independent of the proceedings in the trial court. Rather, this provision
allows that a sanction order for an improper court filing may also include expenses incurred at
the administrative level.
¶ 48 However, it must also be noted that while this paragraph does extend the reach of Rule 137
sanctions to the administrative level, that reach is much more limited. As noted, Rule 137(a)
requires an attorney’s signature certifying that a pleading is well grounded in fact and
warranted by law. Kensington’s Wine Auctioneers & Brokers, 392 Ill. App. 3d at 15. The
provision relied upon by appellants here, now Rule 137(c), contains markedly different
language. Costs may be recovered thereunder for “contesting on the administrative level an
allegation or denial made by the State without reasonable cause and found to be untrue.”
(Emphasis added.) Ill. S. Ct. R. 137(c) (eff. July 1, 2013). This relates to a factual allegation or
the denial of a factual allegation. An allegation is defined as a formal statement of a factual
matter. See Black’s Law Dictionary 74 (7th ed. 1999) (defining “allegation” as “[s]omething
*** asserted as a matter of fact, esp. in a legal pleading; a party’s formal statement of a factual
matter as being true or provable, without its having yet been proved”).
¶ 49 In contrast, the appellant’s request for sanctions relates to an allegedly legally erroneous
argument, that they were not entitled under the law to an emergency review, as opposed to a
false statement of fact. They are claiming that the argument was not warranted at law, and as
such, the claim does not fall within the ambit of Rule 137(c).
¶ 50 To the extent that plaintiffs argue that DCFS should be sanctioned for positions taken
during the proceedings in the circuit court, we similarly find that sanctions are not warranted.
DCFS’s arguments were not contrary to law and were reasonable under the circumstances.
¶ 51 Section 337.30 of Title 89 of the Illinois Administrative Code provides that, “[w]hen the
issue is the removal of a child from the home of a foster family or relative caregiver, the service
appeal process for the Department of Children and Family Services consists of a fair hearing
after a clinical placement review of the decision to remove the child pursuant to subsection
(c).” 89 Ill. Adm. Code 337.30, amended at 36 Ill. Reg. 4388, 4400-01 (eff. Mar. 7, 2012).
Further, this section specifies that an emergency review “is not available to any party when the
issue is removal or change of placement of a child.” (Emphasis added.) 89 Ill. Adm. Code
337.30, amended at 36 Ill. Reg. 4388, 4399 (eff. Mar. 7, 2012). Section 337.30(c) provides that
DCFS “or provider agency may immediately remove a child from a foster family *** without
timely notice to the family, when the child is determined to be at imminent risk of harm in the
6
We note that Rule 137 was amended on June 14, 2013, effective July 1, 2013, to provide paragraph
headings, but is otherwise substantively the same for our purposes concerning paragraph (c).
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current placement.” 89 Ill. Adm. Code 337.30(c)(5), amended at 36 Ill. Reg. 4388, 4402 (eff.
Mar. 7, 2012). Further, this section also directs that when a party appeals from the final
decision of a clinical placement review, “the child shall be placed in accordance with that
decision during the pendency of the appeal.” 89 Ill. Adm. Code 337.30(c)(8), amended at 36
Ill. Reg. 4388, 4402 (eff. Mar. 7, 2012). Thus, in plaintiffs’ case, DCFS was permitted to
immediately remove J.C. without timely notice based on its determination that he was at
imminent risk of harm, and the proper procedure to challenge the removal was a clinical
placement review followed by an appeal from that decision if necessary, while J.C. remained
in the new placement. As discussed, this is what occurred here.7
¶ 52 Additionally, section 337.30(b) specifies that only two issues can be reviewed in an
emergency review, only one of which is relevant here: where action was taken by DCFS or a
provider agency without timely notice because the child was determined to be at imminent risk
of harm. 89 Ill. Adm. Code 337.30(b)(1), (2), amended at 36 Ill. Reg. 4388, 4900 (eff. Mar. 7,
2012). However, the language of section 337.30(b) further provides that, in such a situation,
the availability of an emergency review is limited to “any issue, except placement.” (Emphasis
added.) Id. As “[a] party may request an emergency review within 10 calendar days after the
date of appeal on any issue, except placement” (89 Ill. Adm. Code 337.30(b)(1), amended at 36
Ill. Reg. 4388, 4400 (eff. Mar. 7, 2012)), plaintiffs’ request for an emergency review was
properly denied in this case because their challenge was based on the removal and change in
placement of J.C. Thus, pursuant to section 337.30(b)(1), an emergency review was not
available to plaintiffs. The fact that no emergency review was available to them is buttressed
by language set forth earlier in section 337.30, i.e., “emergency review is not available to any
party when the issue is removal or change of placement of a child.” 89 Ill. Adm. Code 337.30,
amended at 36 Ill. Reg. 4388, 4399 (eff. Mar. 7, 2012).
¶ 53 Based on the foregoing, Rule 137 sanctions were not applicable in this case. Further, DCFS
had a proper legal basis for opposing plaintiffs’ requests for an emergency review and for its
assertions that plaintiffs’ due process rights were not violated in failing to be granted one. The
trial court did not abuse its discretion in refusing to sanction DCFS.
¶ 54 III. CONCLUSION
¶ 55 For the reasons stated, we affirm the judgment of the circuit court of Cook County.
¶ 56 Affirmed.
7
We refer to the most recent and current version of section 337.30, which became effective on
March 7, 2012. However, we note that the prior version also provided for a service appeal process when
the issue was removal or placement of a child, and further provided that an emergency review was not
available when the issue was removal or change of placement of a child. See 89 Ill. Adm. Code 337.30,
amended at 26 Ill. Reg. 6246, 6254 (eff. June 1, 2002). The prior version did not contain the language
set forth in the current sections 337.30(c)(5) or (8).
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