In re Rico L.

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Rico L., 2012 IL App (1st) 113028Appellate Court In re RICO L., a Minor, Respondent-Appellee (The People of the State
Caption of Illinois, Petitioner-Appellee, v. Bernadine L., Respondent-Appellant).
District & No. First District, Sixth Division
Docket No. 1-11-3028
Opinion filed July 27, 2012
Rehearing denied August 31, 2012
Opinion withdrawn August 31, 2012
Opinion filed September 14, 2012
Held The best interests of respondent minor warranted the trial court’s rulings,
(Note: This syllabus which initially found him dependent, made him a ward of the court, and
constitutes no part of placed guardianship with the Department of Children and Family
the opinion of the court Services, but then a short time later returned guardianship to his mother
but has been prepared under a protective supervision order, and then, after an evidentiary
by the Reporter of hearing, vacated the protective supervision order, which reverted custody
Decisions for the to the Department, and issued a modified dispositional order finding
convenience of the respondent’s mother “unable” to provide for him.
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 10-JA-173; the Hon.
Review Bernard J. Sarley, Judge, presiding.
Judgment Affirmed.
Counsel on Anita M. Alvarez, State’s Attorney, of Chicago (Alan Spellberg, Mary
Appeal Needham, and Nancy Kisicki, Assistant State’s Attorneys, of counsel),
for the People.
Robert F. Harris, Public Guardian, of Chicago (Kass A. Plain and Jean M.
Agathen, of counsel), guardian ad litem.
Mark J. Heyrman, Amy J. Beaux and Andrea M. Patton, law students, all
of Edwin F. Mandel Legal Aid Clinic, of Chicago, amicus curiae.
Panel JUSTICE GARCIA delivered the judgment of the court, with opinion.
Justice Palmer concurred in the judgment and opinion.
Justice Gordon dissented, with opinion.
OPINION
¶1 Mother-respondent-appellant, Bernadine L., appeals the circuit court’s ruling of
September 27, 2011, vacating a protective supervision order that returned custody of her
minor son, Rico, to the Guardianship Administrator of the Department of Children and
Family Services (DCFS). On March 17, 2010, DCFS was awarded temporary custody of
Rico when Bernadine refused to pick up Rico after he was medically cleared for discharge
following his fourth hospitalization for psychiatric problems. At the adjudication hearing on
October 19, 2010, the court found Rico to be a dependent minor under section 2-4 of the
Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-4 (West 2010)) in that he “is without
proper medical or other remedial care recognized under State law or other care necessary for
his *** well being through no fault, neglect, or lack of concern” of Bernadine. At the
dispositional hearing on November 9, 2010, the court determined it was in Rico’s best
interests that he be adjudged a ward of the court. The court placed Rico under DCFS
guardianship in accordance with section 2-27 of the Act (705 ILCS 405/2-27 (West 2010)),
as Bernadine was unable “for some reason other than financial circumstances alone to care
for, protect, train, or discipline the minor.” Rico remained at the residential home where
DCFS placed him following its receipt of temporary custody. On June 17, 2011, custody of
Rico was returned to Bernadine under the protective supervision order entered pursuant to
section 2-24 of the Act (705 ILCS 405/2-24 (West 2010)). On September 27, 2011, at the
hearing scheduled for possible closure of the case, the court was informed that Rico was once
again hospitalized for psychiatric problems. After hearing testimony from a DCFS
caseworker and Bernadine and providing the parties the opportunity to present any additional
evidence, the juvenile court vacated the section 2-24 protective supervision order, which
returned guardianship of Rico to DCFS, and entered a modified disposition order pursuant
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to section 2-27 of the Act.
¶2 Bernadine initially challenges the juvenile court’s orders of September 27, 2011, as
procedurally improper. She contends the court erred in vacating the protective supervision
order under which she regained custody of Rico, where no express finding was made that she
violated any term of the order. Also, Bernadine complains that the court proceeding of
September 27, 2011, failed to set out the statutorily mandated, written “factual basis” that
she was unable to care for Rico “for some reason other than financial circumstances alone”
as compelled by section 2-27 of the Act and that the assistance she received from her counsel
was constitutionally ineffective. We find no merit to any of Bernadine’s contentions and
affirm.
¶3 BACKGROUND
¶4 Bernadine, at the age of 37, decided to become a foster parent following her divorce. She
has a degree in business administration and has worked in the accounting department of a
private corporation for 21 years. Bernadine resides in a four-bedroom, single family home
in Chicago. She obtained her foster home license in 1999.
¶5 Born September 29, 1996, Rico was physically abused and abandoned by his biological
parents. He was initially placed with Bernadine for six months beginning in September 2000.
He was returned to her home in June 2001, where he remained. On September 29, 2003, the
Social Security Administration determined Rico to be disabled, which made him eligible for
services and financial support to assist with his care. On April 4, 2007, Rico received a
DCFS adoption subsidy determination. The adoption subsidy entitled Rico to individual in-
home counseling, medication monitoring, and educational support services.
¶6 On June 7, 2007, Bernadine adopted Rico and his younger brother, Rudolph. Beginning
in 2008, the family received postadoption services, including individual and family
counseling.
¶7 In June 2008, Bernadine had Rico psychiatrically hospitalized at Riveredge Hospital for
one month after he allegedly hit Bernadine’s 80-year-old mother with her cane. Rico was 11
years of age. Rico had reportedly been angry at his grandmother after she would not let him
wash the dishes. Bernadine’s neighbor and Chicago police officers that responded to the call
for assistance were unable to de-escalate Rico, which led to his hospitalization.
¶8 In August or September 2009, Rico allegedly attempted to “set the house on fire” by
putting paper in an electrical outlet. He was taken to Chicago Lakeshore Hospital for
psychiatric hospitalization.
¶9 On December 5, 2009, Rico was psychiatrically hospitalized at Hartgrove Hospital after
he threatened to blow up his home. He reportedly placed aluminum foil into the microwave
oven with the intent of blowing up the oven because, as was reported, “his grandmother was
getting on his nerves.” He also expressed suicidal thoughts and allegedly made a statement
that “everyone would be happier if he [were] gone.” During Rico’s hospitalization, a clinical
psychologist administered a psychological evaluation, which found Rico’s IQ to be 82, in the
low range of average intellectual functioning. The psychologist recommended that Rico be
evaluated for attention deficit hyperactivity disorder.
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¶ 10 On January 28, 2010, Bernadine had Rico readmitted to Hartgrove Hospital. He
presented at Hartgrove with “enuresis [bed wetting], impulsivity, distractibility and poor
historical recall.” According to Bernadine, Rico was “eating and chewing objects such as
batteries, pencils, wire, light bulbs and pens.” Rico also kicked holes in the walls of
Bernadine’s home and ate the pieces of drywall. Bernadine expressed concern over Rico’s
statement that “It’d be better *** if I were not around.”
¶ 11 On February 15, 2010, an anonymous call was made to DCFS’s Child Abuse and Neglect
Hotline alleging that Bernadine had refused to pick up Rico, who was medically cleared for
discharge from Hartgrove Hospital. Upon an inquiry by DCFS, Bernadine indicated that she
was unable to handle Rico’s behavior and could not maintain him in her home. DCFS held
a postadoption clinical staffing meeting on February 26, 2010, regarding Rico’s status; DCFS
recommended that Rico be placed in a group home or residential treatment facility.
¶ 12 On March 2, 2010, the State’s Attorney’s office filed a petition for adjudication of
wardship and a motion for temporary custody regarding Rico. The petition alleged that Rico
was dependent in that he was “without proper medical or other remedial care recognized
under State law or other care necessary for his well-being through no fault, neglect or lack
of concern by his parents, guardian or custodian.” Specifically, the petition alleged:
“This minor has been diagnosed with Impulse Disorder, Attention Deficit Hyperactivity
Disorder, Bipolar Disorder and Mood Disorder. Minor has a history of psychiatric
hospitalizations. Minor has been physically aggressive with his mother and other family
members. Minor threatened to kill his mother and other family members. Mother is
unable to care for this minor. There are no other relatives able to care for this minor. This
is a single parent adoption.”
¶ 13 Attached to the motion for temporary custody, DCFS investigator Frances Thomas
averred in his affidavit that Bernadine had locked Rico out of her home. According to
Thomas’ affidavit, Bernadine was “fearful for her safety and all other household members
in her home.” Bernadine requested that DCFS take custody of Rico because she was
experiencing high blood pressure as a result of her inability to care for Rico.
¶ 14 On March 17, 2010, the circuit court held a temporary custody hearing and found
probable cause to support the State’s petition, as well as an urgent and immediate necessity
to remove Rico from Bernadine’s home. The court awarded temporary custody of Rico to the
DCFS Guardianship Administrator. Bernadine was granted day visits, either supervised or
unsupervised at the discretion of DCFS. The public guardian was appointed to represent Rico
as both attorney and guardian ad litem (GAL). On March 31, 2010, the court appointed
attorney Douglas Rathe to represent Bernadine. The parties waived the six-month period for
an adjudicatory hearing.
¶ 15 On April 12, 2010, DCFS transferred Rico from Hartgrove Hospital to a residential
placement at Lydia Home. On April 15, a DCFS social worker conducted an “Integrated
Assessment Interview” with Bernadine. Bernadine wanted Rico to come home after his
treatment. She discussed her efforts at disciplining Rico. She would withhold privileges, such
as games and sweets, and also make him perform push-ups and jumping jacks “to tire him
out.” Bernadine told DCFS that discipline “did not work with Rico and that the only thing
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that worked was ‘letting him do what he wanted.’ ” Bernadine expressed the desire to see her
children “ ‘grow up, have an education, get a job and be successful and well.’ ” Regarding
Rico’s behavioral problems, Bernadine stated, “It’s just day by day, minute by minute. I don’t
want to treat him different. I want him to be a part [of things] as opposed to being alone.”
Bernadine noted her surprise whenever Rico smiled or laughed. Bernadine admitted to being
hurt initially by Rico’s lack of affection, but she learned to accept this as the years passed.
She told DCFS, “I know deep down he loves me.”
¶ 16 DCFS assessed its impressions of Bernadine:
“[Bernadine] tried to create a stable and loving household for Rico to develop. She
engaged him in activities she felt would be empowering and yield positive results.
However, it seemed that she had limited insight into Rico’s maladaptive behavior.
During the IA interview, [Bernadine] admitted that she had not wanted to adopt Rico.
She also felt that she lacked concrete support from DCFS, which probably added to her
stress level and frustration. [Bernadine] used good judgment when she used various
supports and resources to find services for Rico. She used good judgment when she took
him to the psychiatric hospital during the periods he was in crisis. [She] used
questionable judgment when she gave up physical custody of Rico despite being told that
she could maintain custody and receive the help she needed for Rico. *** [Bernadine]
also seemed to use poor judgment in her choice of discipline with Rico.”
The assessment concluded that Bernadine “currently lacks the emotional capacity to parent
an adolescent with Rico’s emotional and behavioral needs.”
¶ 17 DCFS interviewed Rico the same day. Rico claimed that Bernadine hit him with a belt
and with her fist in his chest when he was 11. At the time Rico was 13. Rico denied hitting
his grandmother with a cane, and described her as the only person at home he trusted. He
admitted to chewing on nonfood items, such as rubber, but denied swallowing them. Rico
reported that Bernadine was affectionate and told him that she loves him, but he also stated
he did not like the manner in which she treated him sometimes. He described Bernadine as
“mean.” When asked to explain, Rico said that he did not like all of the push-ups she made
him perform as punishment. Rico complained Bernadine “told too many lies about him.” He
indicated he was frustrated and angry about the lies told about him. He began to cry, after
which he became withdrawn and verbally unresponsive.
¶ 18 The DCFS assessment team concluded that Bernadine had a strained relationship with
Rico, who was often physically and verbally aggressive toward her and other family
members. According to DCFS, Bernadine “has been unable to control Rico’s maladaptive
behaviors over the last several years and does not want him to return home. Although she
realized that Rico’s placement into a residential treatment facility was in his best interests,
she expressed guilt about contacting DCFS for assistance and losing physical custody of
him.” Bernadine was willing to engage in reunification services, such as family therapy and
visitation with Rico. DCFS reported its prognosis for Rico returning to Bernadine’s home
as “guarded.”
¶ 19 On October 19, 2010, an adjudication hearing was held on a stipulation of facts of the
parties. The parties stipulated that as of March 2010, “the minor was in need of a structured
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setting more intensive than a home setting due to the fact that the minor was suicidal,
physically aggressive, and eating nonnutritive objects.” The stipulation provided that
“[Bernadine] is unable to care for the minor in her home due to her concerns for the safety
and well being of the minor as well as the other members of her home.” Based on the
stipulation, the circuit court found Rico to be a dependent minor pursuant to section 2-4 of
the Act (705 ILCS 405/2-4 (West 2010)) in that he “is without proper medical or other
remedial care recognized under State law or other care necessary for his *** well being
through no fault, neglect, or lack of concern” of Bernadine. The court issued a finding of
dependency based on “the minor’s multiple mental health diagnoses and threatening behavior
to family members and inability to de-escalate despite the adoptive mother’s efforts to assist
with the minor’s diagnoses and behavior.”
¶ 20 On November 9, 2010, the circuit court held a dispositional hearing, at which two
caseworkers and Bernadine testified. Ronald Haynes, a caseworker at Lydia Home, testified
that Rico was diagnosed with post-traumatic stress disorder, attention deficit disorder,
depression, and enuresis. Rico received treatment for his diagnoses and was compliant with
the medications he was prescribed. Rico received family therapy with his mother, known as
“parent/child interaction therapy” (PCIT). According to Haynes, the therapy assisted Rico
in making progress. Bernadine was also very compliant with all of Lydia Home’s requests
and those from the PCIT. Bernadine had unsupervised, off-site visits with Rico for eight
hours at a time. No incidents were reported during the visits. Haynes stated that while the
parties were making progress, Rico needed continued placement at Lydia Home. Haynes
recommended that Rico be adjudged a ward of the court. He recommended a permanency
goal of return home within 12 months as consistent with Rico’s best interests.
¶ 21 Amelia Green testified that she was the DCFS caseworker assigned to Rico since the
inception of his case. She stated that there were no signs of abuse or neglect of Rico at Lydia
Home.
¶ 22 Bernadine testified that during the family therapy sessions, Rico told her about
altercations or arguments he had with staff or roommates at Lydia Home. According to
Bernadine, she did not observe any improvement in Rico’s behavior from his stay at Lydia
Home. Bernadine testified that she preferred Rico remain at Lydia Home until he completed
the eighth grade in June 2011. She stated that she wanted Rico to come home when he was
well enough.
¶ 23 Following the testimony, the circuit court determined it was in Rico’s best interests that
he be adjudged a ward of the court. The court found Bernadine was “unable for some reason
other than financial circumstances alone to care for, protect, train or discipline” Rico. The
court placed Rico under DCFS guardianship. The court informed Bernadine of her appeal
rights. The court set Rico’s permanency goal as return home within 12 months, based on
Bernadine having “made substantial progress toward return home of this minor based on the
evidence that I’ve heard.” A permanency order was entered on November 9, 2010, consistent
with the court’s findings. Bernadine did not appeal.
¶ 24 On May 9, 2011, the circuit court entered a new permanency goal of return home within
five months. The court’s order stated that the parties “are in need of continued services
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geared toward re-unification.” The court scheduled another permanency hearing for June 17,
2011.
¶ 25 On June 10, 2011, Bernadine filed a motion requesting that Rico be allowed to return
home. The motion alleged that Lydia Home was scheduled to discharge Rico on June 17,
2011, a few days after his eighth-grade graduation. According to the motion, Lydia Home
staff concluded that Rico’s discharge was appropriate so long as outplacement services were
in place. The motion also submitted that DCFS agreed in court on May 9, 2011, with the
return home recommendation. The only question was the date for the transition of Rico from
Lydia Home to Bernadine’s home.
¶ 26 On the date of the scheduled permanency hearing of June 17, 2011, the circuit court
heard Bernadine’s motion for Rico’s return home. Haynes testified that since Rico’s April
2010 placement at Lydia Home, he had been participating in individual therapy, family
therapy, and medication monitoring for aggressive behavior. According to Haynes, the
medication helped stabilize Rico. Haynes stated he was not ready to recommend Rico return
to Bernadine’s home because psychiatry appointments had yet to be confirmed. Haynes did
not feel comfortable recommending return home until after a scheduled June 20 assessment
and the assignment of a psychiatrist. Haynes confirmed that Bernadine wanted Rico returned
home. Bernadine requested that Rico be placed in a therapeutic high school, but Lydia Home
did not agree. According to Haynes, the Chicago Board of Education did not deem Rico fit
for a therapeutic school. Haynes reported that Rico’s Lydia Home psychiatrist recommended
Rico return home, conditioned upon arranging for continued psychiatric services. Lydia
Home would provide Rico with a 30-day supply of his medications if he were returned home
after the permanency hearing. Haynes stated Rico enjoyed his visits with Bernadine and that
Rico wanted to return home as well. Haynes concluded that it was in Rico’s best interests
that custody be returned to Bernadine.
¶ 27 DCFS caseworker Green testified that Bernadine would not have to worry about paying
for services because services were in place in the event of a “return home” finding. Green
agreed with Haynes’ recommendation of return home, but only if “the psychiatrist is in place
first.”
¶ 28 Bernadine testified she believed Rico was ready to come home. She had diligently
participated in all DCFS had asked of her and she had attended all court hearings. Bernadine
contacted the agency where Rico received psychiatric counseling and medication monitoring
before Rico came into the juvenile court system and she made an appointment to have Rico
seen by a psychiatrist there. She stated that the agency accepted Rico’s medical card.
Bernadine was confident that everything would work out, and she was ready to take Rico
home that day.
¶ 29 Rico told the circuit court that he was ready to go home.
¶ 30 In its findings, the circuit court reviewed all the evidence and indicated its familiarity
with the progress Bernadine had made. The court found Bernadine fit and able to protect,
care for, train, and discipline Rico. According to the court, reasonable efforts had been made
to address the reasons for Rico’s removal from Bernadine’s home and appropriate services
aimed at family preservation were successful. The court stated, “[I]t is no longer in the best
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interest of the minor to be a ward of the state.” The court, however, determined that Rico’s
best interests compelled an order of protective supervision under section 2-24 of the Act with
the return of custody of Rico to Bernadine. The order of protective supervision required
Bernadine “not use, or allow anyone else to use, any corporal punishment on the minor(s)
(no spanking or hitting with any objects, including, but not limited to, belts, cords, sticks,
fists or hands).” Bernadine was directed to provide proper care to Rico, cooperate with all
reasonable requests of DCFS, and notify DCFS within 24 hours of any injury to Rico that
required professional medical treatment. The written order included additional conditions
that Rico attend all psychiatric appointments and take all prescribed medications. Finally, the
court advised Bernadine that if she “were to fail to meet any of the conditions or violate any
of the conditions, one of the possible consequences could be that Rico would be removed
from the home again.” Bernadine agreed to adhere to all the conditions of the protective
supervision order, which she confirmed with her signature. The order remained in effect
“until further order of the Court.”
¶ 31 On August 19, 2011, the circuit court continued the case to September 27, 2011, for a
progress report and a hearing to possibly close the case.
¶ 32 At the September 27, 2011 hearing, Bernadine’s attorney, Douglas Rathe, informed the
court that there had been an “unusual incident since the case returned home [on June 17].”
According to Rathe, Rico had a “meltdown” in Bernadine’s home, which required police
involvement and Rico’s psychiatric hospitalization at Hartgrove Hospital, where Rico
remained.
¶ 33 DCFS caseworker Green testified that she was informed of the incident on August 31,
2011, by Rico’s GAL. Green then contacted Bernadine, who told Green that Rico had
attacked her. In response to Green’s question as to what precipitated the incident, Bernadine
stated that Rico “had an incident at school, that he had a detention at school, and he just
attacked her.” Green then spoke to Rico about the incident; he told Green that he attacked
Bernadine “because he wanted something else to eat.” Green detailed her conversation with
Rico:
“He had eaten at 5:00 o’clock, and he had four hotdogs, and he wanted something else
to eat. And when he wanted something else to eat, [Bernadine] was going to give it to
him, but his granny got involved. [The grandmother] told him that [he] should be fed, not
necessarily that he should get full.”
Green testified that following a physical altercation between Bernadine and Rico, Rico went
to the police station to report the incident. The police brought Rico back to the house, after
which he was taken to Hartgrove. Green visited Rico at Hartgrove four days after the incident
and observed some scratches on his neck. Rico told Green that he was scratched by
Bernadine’s fingernails when she held his neck. Rico told Green that he wanted to return
home, but was afraid to go home. He told Green he wanted to go home because “[t]hat was
his home, that was his mom.”
¶ 34 Green testified to discussing the incident with her supervisor to determine DCFS’s
recommendation. Green’s supervisor recommended that Rico be returned home to Bernadine
“because the case [of possible physical abuse of Rico by Bernadine] was unfounded and that
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he’s not in any imminent danger.” The supervisor recommended that additional services be
put in place to provide closer monitoring, including a safety plan. Green testified that prior
to the incident, Bernadine and Rico were attending family counseling; Rico was attending
individual counseling and taking his medications. Green stated DCFS did not have any safety
concerns for Rico if he were returned home.
¶ 35 The GAL questioned Green regarding Hartgrove’s recommendations. Green testified that
a DCFS Child and Youth Investment Team (CAYIT) meeting occurred on September 15,
2011, during which Hartgrove recommended that Rico be returned to Bernadine “with
services in place and [monitoring] to regulate his medication to see if that would work.”
Hartgrove recommended outpatient therapy and a therapeutic day school. The GAL asked
Green whether Rico had experienced any unusual incidents since being admitted to
Hartgrove. According to Green, Bernadine had informed her that Rico had “tore some stuff
on the wall,” and that “[h]e and a peer got into it or something.” Green stated she would
follow up with Hartgrove to discuss the incidents related by Bernadine. The GAL asked
Green whether her recommendation would be different if she learned that Rico had angry
outbursts as recently as the previous Friday. Green answered, “No. That don’t change my
recommendation. That was my supervisor’s recommendation.”
¶ 36 Attorney Rathe then questioned Green. He asked, “What gives you any confidence that
a 15-year-old boy who has obvious mental health issues would be willing to agree and stick
to this [safety plan] contract” that DCFS had proposed? Green responded, “I don’t know
whether he will or not, but I know he wants to go home. So if he wants to go home and
remain in the family, this is something that we have to talk to him about.” Regarding the
August incident that resulted in his hospitalization, Rico told her “the situation was okay
about the food until granny got involved.” Rico told Green that he never hit Bernadine, but
“just held her against the wall.” Rathe asked Green about the “significant damage” Rico
caused to Bernadine’s basement. Green stated that Bernadine told her Rico “was tearing up
her house.” Rathe then asked Green, “[C]ould [you] give Judge Sarley any confidence that
Rico will not either be a danger to himself or a danger to others in light of his obvious
situation here?” Green responded that DCFS completed an investigation and concluded the
incident of possible abuse of Rico was unfounded. Rathe asked Green whether she could give
any assurances that Rico’s outbursts would not recur. Green answered, “I can’t predict.
Suppose he come[s] home and everything goes fine.”
¶ 37 Rathe next asked Green whether anyone at the September 15, 2011 CAYIT meeting had
provided suggestions “as to how to provide sufficient backup to [Bernadine] so she can make
sure that she can cope with the situation.” Green responded that the purpose of the CAYIT
meeting was “just to go over the action plan, what was in the action plan. And it was not ***
to discuss that, that [the Illinois Division of Child Protection (DCP)] was involved[, which]
*** would make their [own] recommendations and their assessments of the case.” Rathe
asked, “Knowing, at some point, that Rico would be discharged from Hartgrove, had DCFS
done anything to put additional services in place since services don’t start just because people
think they need to be started instantly? Has DCFS done anything to put additional services
in place?” Green answered, “No, because Rico–We [were] waiting to hear from DCP and
their investigation, whether he was coming home or not. DCP unfounded the case. So now
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we can put services in place, additional services.” According to Green, DCFS still had an
open case for Rico, even though it was no longer Rico’s guardian. Green stated that she could
refer Bernadine and Rico back to the agency, “System of Care,” so “if they need five days
of therapy and [Bernadine’s] agency can’t provide it, then we’ll use this agency to make up
the slack.”
¶ 38 Under questioning by DCFS, Green testified she did not ask Bernadine why she failed
to notify DCFS of the August incident. Green stated Bernadine should have called her.
Bernadine told Green that she contacted her lawyer instead. Green agreed that if Rico were
returned home, part of the safety plan would require Bernadine to contact DCFS about any
incidents. Green was unaware whether Rico was ready for discharge from Hartgrove. She did
not have a discharge report, but would follow up with Hartgrove to determine its
recommendations.
¶ 39 Rathe next called Bernadine to testify about the August incident. According to Bernadine,
Rico wanted more food to eat. Bernadine told Rico that he had eaten enough and at
approximately 8:40 p.m., she told him to go to bed. Bernadine stated, “The next thing was
Rico blew up and said, ‘I’m ready to eat. You can’t tell me when I’m hungry. I’m still a
growing boy.’ ” Bernadine told Rico that he needed to stop arguing and go to bed. Rico
responded, “No,” and ran into the back room where he threw macaroni and cheese from a
package all over the floor. When Bernadine saw the macaroni on the floor, she told Rico
“just go straight on to your room right now and go to bed.” Rico ran to his bedroom and hit
Bernadine with the door. Bernadine said to Rico, “[Y]ou’re not going to hit me no more.”
At that point, Rico slammed the bedroom door. Bernadine opened the door. Rico said to
Bernadine, “I did it. What you gonna do?” Rico then called Bernadine a “B.” Bernadine said,
“[E]nough is enough. Do we need to call the police?” Rico told Bernadine to “call who you
want.”
¶ 40 A physical altercation ensued in Rico’s bedroom. Bernadine “got in Rico’s face and said,
‘You’re gonna stop it right now. Calm down. Calm it down.’ ” Rico hit Bernadine’s hand.
She hit him back. Rico then kicked Bernadine. She hit him again. According to Bernadine,
by this time, Rico “had [her] up against that closet that’s in his room.” She tried to pull away
from him and “that’s how he got the scratches on the back of his neck.” Bernadine stated,
“We started tussling. I get him to turn around, and I push him back up against the closet, and
I said, ‘Now calm it down right now.’ ” Rico ran back downstairs and said, “I’m about to call
my people.” He dialed the police and said he was being abused “because he could not get
what he wanted to eat.” Bernadine took the telephone away from Rico and asked the police
to send an officer right away. Rico grabbed the telephone from Bernadine, ran to the
basement, yelled into the phone, “Not, not, not,” and threw the telephone down without
disconnecting the call. He ran around the basement scattering clean clothes around,
unscrewing light bulbs, and throwing the bulbs all over the basement. Bernadine picked up
the telephone and told the police, “He’s tearing up my basement.” Rico then ran back
upstairs to the main level of the house, grabbed his grandmother’s four-pronged cane, poked
a hole in the door leading to the foyer, and ran out of the house.
¶ 41 Bernadine called the police again and requested a police car be sent. Fifteen minutes
later, the police arrived and investigated the scene. Bernadine told the police she wanted to
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file an incident report. After the police officers left, Bernadine called the police again to
report Rico as a runaway. Approximately 30 minutes later, the police returned with Rico;
they suggested he be taken to Hartgrove Hospital. Bernadine accompanied Rico to Hartgrove,
where he was admitted.
¶ 42 Bernadine testified that she attended the CAYIT meeting on September 15, 2011. She
also contacted attorneys that specialize in finding services for children. She agreed that one
of the options she had discussed with Rathe was whether the protective supervision order
should be vacated to permit DCFS to resume custody of Rico. She stated she was against this
option because she wanted Rico to return home. Rathe suggested to Bernadine that she
explain to the judge how she would handle a similar incident: “[I]f Rico has a meltdown and
you attempt to redirect him, and he gets out of hand, what are you going to do about that?”
Bernadine responded, “[I]f it gets too far out of hand, [I would call] the police or the
ambulance. That’s what I was told to do. That’s what I will do.” Bernadine was asked, in the
event of another meltdown, “are we going to be back where Rico calls the police, and then
Rico is taken to Hartgrove again?” Bernadine responded, “I can’t answer that. That depends
on Rico.”
¶ 43 Rathe asked Bernadine for her preferred outcome to the hearing. She stated, “I want to
keep custody of my son. But I know my son has problems, and I want him to get some
sufficient help.” Bernadine said she wanted Rico to receive “[w]hatever help can be given
to him that would help him be able to function normally and independently. I don’t know
what all that entails, but I know he needs it.” Bernadine was asked if she was aware that so
long as she has custody of Rico under an order of protective supervision, “DCFS is going to
have limited ability to help you.” Bernadine answered, “Yes, I found that out today.” The
following colloquy ensued between Bernadine and her attorney.
“Q. To a large extent, this is going to fall on you.
A. Yes.
Q. But do you want that to happen?
A. Yes. May I speak? If it entails me giving up custody of my child, yes.
***
Q. And for the judge to vacate the order of protection and take Rico back into the
system, you want to be Rico’s guardian, and not DCFS?
A. Yes.
Q. Is that accurate?
A. Yes.
Q. And you understand that Rico is a handful?
A. Yes.
Q. But you want Rico–Rico will probably be discharged from Hartgrove in the next
few days, and he’s going to come home to you.
A. Okay.
Q. And you’re ready to address all his needs?
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A. I’m ready to do my best as a parent.”
¶ 44 The GAL asked Bernadine whether she pressed charges against Rico. Bernadine stated
she filed a police report but did not press charges. Bernadine stated that at no time following
the August incident did she express not wanting to have Rico return home.
¶ 45 Under questioning by DCFS, Bernadine testified that the reason she did not contact
DCFS immediately after the August incident was because she contacted her attorney.
Bernadine explained that on prior occasions she had called Green and left messages on
Green’s voice mail, “and either nothing was done or no call was given back.” Bernadine
agreed that she was supposed to call the supervisor, whose number she had, if she was unable
to reach Green.
¶ 46 The circuit court judge then questioned Bernadine. “[I]n your opinion, what needs to be
done for Rico that’s not being done now that will address or would address his situation with
his behavior, his outbursts?” Bernadine responded, “I don’t know exactly what he needs in
terms of services. But therapy and medication are not correcting whatever is wrong.
Whatever else can be offered, maybe that will help. But in terms of what do I know exactly,
I don’t know.” The court then asked, “But whatever services he was doing or
getting–Whatever services he was getting before this happened, you don’t think are doing
the job?” Bernadine answered, “No, sir.” In answering additional questions from the circuit
court, Bernadine testified that she had other arguments with Rico since he returned home in
mid-June but the arguments did not escalate to the level of the late August incident.
¶ 47 Following Bernadine’s testimony, the judge asked whether any party had additional
evidence to present. The DCFS caseworker suggested continuing the case to obtain
Hartgrove Hospital’s discharge report, which she expected would include recommendations
for Rico. The DCFS caseworker explained:
“I don’t know if we leave the minor at home whether it would be a successful return
home. I just don’t want to have the case come back in, and we didn’t have everything that
we needed to have in order to make a proper recommendation or decision. *** I think it’s
important to have that discharge report before we can state what our positions are going
to be.”
The judge responded:
“Well, it seems pretty obvious to me that something else, something more than what was
occurring before has to happen now in order for him to stay home, or this is just going
to happen again. And I’m just like [Bernadine], I don’t know–I can’t say what the answer
is. I’m not a professional as far as that goes. *** But anyway, there needs to be some
evaluation or some recommendations put into place after an evaluation before he can be
safely returned home. I suppose that’s a start, getting the discharge recommendations.”
¶ 48 The GAL expressed concern that “everybody is waiting for everybody else. The hospital
is waiting for us to say, ‘Okay. He’s going home.’ [We are asking,] ‘What are the
recommendations when he goes home,’ not, ‘Do you think he should go home.’ ” The GAL
noted the hospital discharge report would probably not provide real insight for the next step
for Rico, which the court had to determine. According to the GAL, the section 2-24 order of
protection should be vacated, though responding “as his attorney, Rico definitely wants to
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go home.” The GAL stated that if the section 2-24 order were vacated, she would ask the
court to order an emergency CAYIT meeting to develop a placement recommendation.
¶ 49 DCFS responded that Rico “would have to stay at the hospital until a placement could
be located for him. It could take a long period of time.”
¶ 50 The State agreed that the order of protective supervision should be vacated.
¶ 51 Rathe argued that Bernadine “feels very strongly about not vacating the order.” Rathe
continued:
“But in terms of the best interest of Rico, I’m not–I’ve told this to [Bernadine] many
times that I’m concerned that if Rico comes home without sufficient resources, there
could be problems. I said that to her at the CAYIT meeting. I am very concerned she
doesn’t have the backup that she needs now. But she wants Rico home, so that’s my
position.”
¶ 52 Following arguments of the parties, the judge issued his ruling.
“All right. Well, then here’s what I’m going to do. From what I’ve heard, there is a
safety issue involved if Rico were to be returned home without anything else being done.
And because of that, somebody could get hurt. I’m not sure if it’s Rico. I’m not sure if
it’s Rico’s mother. I don’t know if it’s Rico’s grandmother. But somebody could get hurt.
And until his needs are addressed so that he can safely be returned home, I don’t
think it’s in anybody’s best interest to return him home. So I’m going to vacate the order
of protection and return him to the custody of DCFS.”
¶ 53 The court vacated the section 2-24 protective supervision order of June 17, 2011, which
reverted custody of Rico to the custody of the DCFS Guardianship Administrator. DCFS was
directed to hold an emergency CAYIT meeting within seven days to address Rico’s
placement and the services he would be provided. A modified dispositional order under
section 2-27 of the Act was also entered. The order provided (1) Bernadine is “unable for
some reason other than financial circumstances alone to care for, protect, train, or discipline
the minor”, (2) reasonable efforts have been made to prevent or eliminate the need for Rico’s
removal from Bernadine’s home, (3) appropriate services aimed at family preservation and
family reunification have been unsuccessful, and (4) it is in the best interests of Rico to
remove him from the custody of Bernadine. The case was set for a hearing on November 9,
2011, regarding the status of services and Rico’s actual placement.
¶ 54 Bernadine filed a timely notice of appeal from the dispositional order entered on
September 27, 2011.
¶ 55 ANALYSIS
¶ 56 Bernadine submits in an overarching contention that “at the heart of this case is a
pervasive misunderstanding, made by many actors in the child welfare system and the legal
system, about proper care and treatment of a child who has intensive psychiatric needs.”
Bernadine argues that the circuit court applied a “forced custody relinquishment policy” to
Rico. According to Bernadine, the circuit court “mistakenly assumed [the policy] to be
reasonable and ‘best’ for children with severe mental health needs.” The policy “require[s]
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their parents to forfeit legal custody and guardianship of their children to enable children to
access treatment and protect them from harming themselves and their family members.” As
evidence of this policy, Bernadine points to the circuit court decision to “substitute” its
judgment as to Rico’s best interests for Bernadine’s, which “gave short shrift” to Rico’s
interests in maintaining his familial relationships. According to Bernadine, the best interests
factors applicable to Rico’s circumstances do not support the court’s decision to remove Rico
from Bernadine’s custody. Bernadine also asserts the court improperly vacated the section
2-24 protective supervision order when Bernadine was never accused of violating the order.
Bernadine argues the “no-fault” adjudication that occurred here cannot lawfully serve as a
basis for an involuntary removal of a child from an otherwise fit parent. As an alternative
contention, Bernadine argues the court’s decision to return Rico to DCFS guardianship, as
being in his best interests, is against the manifest weight of the evidence. Finally, Bernadine
argues her constitutional right to effective assistance of counsel was violated by counsel’s
representation at the hearing on September 27, 2011.
¶ 57 Section 2-24 Protective Supervision Order
¶ 58 As made clear in her main brief, Bernadine asserts the best interests determinations by
the circuit court on September 27, 2011, must be viewed in light of its ruling on June 11,
2011, terminating DCFS guardianship and returning Rico to Bernadine’s custody. Bernadine
points to this order, her “clear wishes” to keep legal custody of Rico, and Rico’s own desire
to remain in his mother’s custody, as evidence that the court’s decision of September 27,
2011, operated on the legally and factually mistaken premise that Rico could be cared for
only by superseding Bernadine’s fundamental right of legal custody and guardianship of
Rico. Citing Troxel v. Granville, 530 U.S. 57, 68 (2000), Bernadine asserts, “a fit parent is
entitled to determine their [sic] child’s best interests and fit parents are presumed to act in
the best interests of their children.”
¶ 59 Making a similar contention, the amicus curiae brief submitted by the Edwin F. Mandel
Legal Aid Clinic asserts “no reason [exists that] a fit, willing, and able parent should lose
custody so that her child can receive necessary mental health services.” It notes that
“[d]espite the lack of evidentiary support or written findings regarding either Bernadine’s
ability or Rico’s best interests, the court took custody from Bernadine by completing a
preprinted disposition order, on which it checked boxes indicating that it had made all
requisite findings [under section 2-27].”
¶ 60 Both Bernadine and the amicus wrongly presume that the propriety of the circuit court’s
action turns solely on the proceedings held on September 27, 2011, in light of the juvenile
court’s decision to return custody of Rico to Bernadine on June 17, 2011. The court issued
a protective supervision order as well on June 17 for a reason. The juvenile court determined
that Rico’s “health, safety and best interests” compelled the order. 705 ILCS 405/2-24(1)
(West 2010). Rico’s best interests remained the principal concern of the juvenile court. The
entry of the protective supervision order meant Bernadine’s ability “to care for, protect, train
or discipline” Rico remained in question. Bernadine was directed to follow all the conditions
of the protective supervision order, which remained in effect “until further order of the
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Court.” The juvenile court judge also informed Bernadine that if she “were to fail to meet
any of the conditions or violate any of the conditions, one of the possible consequences could
be that Rico would be removed from the home again.” We reject Bernadine’s suggestion that
returning custody of Rico to Bernadine on June 17, 2011, was the equivalent of closure of
the case, which required the juvenile court to hold a new adjudicatory hearing, followed by
a new dispositional hearing. See In re P.P., 261 Ill. App. 3d 598, 602 (1994) (juvenile court
retains “authority to make custodial changes during the period that the case is within the
court’s protective supervision”).
¶ 61 In P.P., the mother appealed the circuit court’s decision to remove the newborn minor
from her custody and return the minor to the guardianship of DCFS. Id. at 598. On appeal,
the mother contended “that the court improperly removed P.P. from her custody without
legal basis and without following the proper statutory procedure.” Id. at 600. At the
dispositional hearing following an adjudication that the minor was neglected under section
2-14 of the Act (705 ILCS 405/2-14 (West 1992)), the court returned custody of P.P. to the
mother under an order of protective supervision pursuant to section 2-24 and set the matter
for a progress report approximately 60 days later. P.P., 261 Ill. App. 3d at 599. On the date
of the progress report, the court was informed that the minor had been hospitalized for a
severe burn caused by the immersion of her hand into hot water. “Because neither the DCFS
worker nor the guardian ad litem (GAL) had been aware of the injury until the hearing date,
the court continued the hearing *** [for four days].” Id. At the request of the GAL, the
matter was continued for an additional four days to permit the filing of a supplemental
petition to determine whether the minor should be removed from the mother’s custody. In
addition to the supplemental petition by the GAL, DCFS filed a supplemental petition
alleging the mother violated the protective supervision order. Id. at 600. A hearing was held
on both petitions. Id. The court found the scalding burn, while not intentional, “constituted
evidence that P.P. was neglected.” Id. “The court then vacated the section 2-24 order of
supervision and appointed [DCFS Guardianship Administrator] guardian with the right to
place. It is this order that is being appealed.” Id.
¶ 62 The first issue the P.P. court addressed was “whether [the] juvenile court followed proper
statutory procedure when it [vacated the section 2-24 order and placed P.P. in the custody
of DCFS].” Id. at 600. The juvenile “court seemed to indicate that it was acting under the
authority it possessed by virtue of the section 2-24 order of protective supervision and that,
by vacating the section 2-24 order, custody ‘reverted’ to [the guardian administrator of
DCFS],” which the mother disputed. Id. at 601. The P.P. court noted, as we do in this case,
that there exists “some confusion or lack of clarity regarding the procedural authority upon
which the [juvenile] court was relying.” Id. The court stated that “the petitions for
supplemental relief would have been more properly termed petitions for a change of
custody,” suggesting that the petitions in the record were not labeled as such. Id. In any
event, the P.P. court did not hold that a change-of-custody petition was mandated by the Act.
Rather, the P.P. court noted that the minor “had already been adjudicated a neglected child
and was a ward of the court who had been returned to the custody of her mother under an
order of protective supervision.” P.P., 261 Ill. App. 3d at 601. The court held that under these
circumstances, “a court has the authority to retake custody of a minor upon a determination
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that the section 2-24 order of protective supervision had been violated and that circumstances
and the best interests of the child warranted such action.” Id.
¶ 63 The P.P. court rejected the mother’s contention that section 2-24 did not authorize the
custodial change.
“[R]eading section 2-26 [regarding the enforcement of orders of protection] in
conjunction with the subsequent section 2-28 shows that the court does have the
authority to make custodial changes during the period that the case is within the court’s
protective supervision.
We conclude that the juvenile court may, at the time it conducts a court review of a
case in which a minor has already been adjudicated abused and/or neglected, been made
a ward of the court and placed under the protective shield of a court order of supervision,
alter custodial placement if the circumstances and best interests of the child warrant.” Id.
We find P.P. dispositive of Bernadine’s contentions.
¶ 64 Before this court, Bernadine’s brief premises her challenge of the juvenile court’s rulings
of September 27, 2011, on the court’s decision of June 17, 2011, to terminate DCFS’s
guardianship of Rico and return custody to Bernadine. However, our review extends to the
entire record of the juvenile proceedings. This includes the court’s findings on March 17,
2010, of an urgent and immediate necessity to remove Rico from Bernadine’s home based
on the emotional and behavioral problems that resulted in four separate hospitalizations since
June 2008, following the last of which Bernadine refused to pick up Rico. At the
adjudication hearing on October 19, 2010, on a stipulation to the facts by the parties, the
court found Rico to be a dependent minor “through no fault, neglect, or lack of concern” of
Bernadine. At the initial dispositional hearing on November 9, 2010, the court determined
Rico’s best interests were served by adjudging him a ward of the court, with DCFS
guardianship. The juvenile court found Bernadine unable, for some reason other than
financial circumstances alone, to care for, protect, train, or discipline Rico. Bernadine,
though informed of her appeal rights, did not challenge the ruling. As a final order, the
juvenile court’s rulings on November 9, 2011, became the law of the case. See In re April
C., 345 Ill. App. 3d 872, 974-75 (2004) (the court rejected the respondent’s challenge to the
juvenile court’s finding of parental unfitness, which it based “in part, on the prior
determinations of abuse and wardship”).
¶ 65 We reject Bernadine’s implicit claim that before the juvenile court could exercise its
discretion to act in the best interests of Rico on September 27, 2011, it was required to begin
the statutory procedures under section 2-27 anew, when no final closing and discharge of the
proceedings occurred. A juvenile “court has authority to retake custody of a minor upon a
determination that the section 2-24 order of protective supervision had been violated and that
circumstances and the best interests of the child warrant such action.” P.P., 261 Ill. App. 3d
at 601. While it may have been better had the court below required the filing of a petition
“for a change of custody [now] pursuant to section [2-28(4)],” as P.P. stated (id.), before the
court issued its ruling on September 27, 2011, we find no statutory mandate that such a
petition be filed. Id. Nor does Bernadine assert such a contention. We observe, as well, that
Bernadine never objected to the court’s rulings based on the absence of a “change of
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custody” supplemental petition or of a supplemental petition alleging a violation of the
protective supervision order, which forecloses any such claim before this court. See In re
Yasmine P., 328 Ill. App. 3d 1005, 1011 (2002) (argument made for the first time on appeal
is forfeited). We note that had Bernadine demanded the filing of such supplemental petitions,
once it became clear that the juvenile court was being asked to consider vacating the section
2-24 order, it would have been a simple matter to postpone the September 27 hearing. See
P.P., 261 Ill. App. 3d at 599-600; People v. Bynum, 257 Ill. App. 3d 502, 514-15 (1994) (a
timely and specific objection allows for a reasonable opportunity to correct a deficiency). Nor
is there any real dispute that Bernadine violated the protective supervision order by not
calling DCFS within 24 hours of Rico’s hospitalization in August 2011. The juvenile court
notified Bernadine on June 17, 2011, that if she “were to fail to *** violate any of the
conditions [of the protective supervision order], one of the possible consequences could be
that Rico would be removed from the home again.” In any event, Bernadine fails to inform
this court how the filing of a petition for a change of custody or one alleging a violation of
the protective supervision order would have changed the outcome below.
¶ 66 Nor was the juvenile court’s finding of Rico as a dependent minor under section 2-4 of
the Act on October 19, 2010, effectively undone by the court’s decision to return custody of
Rico to Bernadine on June 17, 2011, under an order of protective supervision. As the court
in P.P. made clear, a juvenile court retains “authority [under section 2-28] to make custodial
changes during the period that the case is within the court’s protective supervision.” P.P.,
261 Ill. App. 3d at 602. That is precisely what the court did in this case. The court ruled, in
the exercise of its discretion, that Rico’s best interests warranted the protective supervision
order of June 17, 2011, be vacated, which necessarily reverted Rico’s custody to DCFS.
¶ 67 Nor do we agree with Bernadine’s implicit claim that the juvenile court made an
unequivocal finding of fitness of Bernadine on June 17, 2011, when it changed guardianship
of Rico from DCFS to Bernadine. On May 9, 2011, the court entered a new permanency goal
of return home within five months. The court found Bernadine and Rico “in need of
continued services geared toward re-unification.” On June 17, 2011, while the court ruled
favorably on Bernadine’s motion to return Rico to her home, the court made clear that Rico
required continued services. On the basis of the positive reports by Lydia Home and DCFS
and the representation that adequate services would be provided to Bernadine, including
having Rico seen by a psychiatrist, the court ruled: “[I]t is no longer in the best interest of
the minor to be a ward of the state.” The court, however, entered the order of parental
protective supervision under section 2-24 of the Act, which compelled Bernadine to provide
proper care to Rico, cooperate with all reasonable requests of DCFS, and notify DCFS within
24 hours of Rico receiving professional medical treatment. Bernadine signed the order of
protective supervision, which remained in effect “until further order of the Court.” While
guardianship of Rico was changed from DCFS to Bernadine, concerns over Rico’s health,
safety, and best interests prompted the court to enter the protective order.
¶ 68 Bernadine’s citation to the decision of the United States Supreme Court in Troxel, 530
U.S. 57, for her overarching claim that the juvenile court improperly substituted its judgment
regarding Rico’s best interests for Bernadine’s is simply misplaced. In that case, the Supreme
Court reviewed the constitutionality of a Washington state statute that permitted “[a]ny
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person” to petition for visitation rights “ ‘at any time’ ” and authorized the state superior
courts to grant such rights whenever visitation would serve a child’s best interests. Id. at 60.
Petitioners Jenifer and Gary Troxel sought the right to visit their deceased son’s daughters.
Id. at 60-61. Respondent Tommie Granville, the girls’ mother, did not oppose all visitation,
but objected to the degree of visitation sought by the Troxels. Id. Granville appealed the
superior court’s order granting more visitation than she considered in her daughters’ best
interests. Id. at 61. The Washington Court of Appeals reversed and dismissed the Troxels’
petition. Id. at 62. The state supreme court affirmed, holding that the statute
unconstitutionally infringed upon a parent’s fundamental right to rear her children. Id. at 62-
63. The state supreme court reasoned that the United States Constitution permits a state to
interfere with the parents’ fundamental right only to prevent harm or potential harm to the
child and found that the statute did not require a threshold showing of harm and was too
broad in its scope. Id. at 63. The Troxel Court affirmed. Id. The Court explained, “[T]he Due
Process Clause does not permit a State to infringe on the fundamental right of parents to
make child rearing decisions simply because a state judge believes a ‘better’ decision could
be made.” Id. at 72-73.
¶ 69 The instant case is outside the confines of Troxel. The case before us falls within the
exception that permits a state to interfere with a parent’s fundamental right to rear a child in
order to prevent harm to the child. The showing made in this case at the adjudication hearing
on October 19, 2010, and in the dispositional order of November 9, 2010, satisfied the
requirements under due process arising from the fundamental rights of any parent to rear her
child. We reject the implicit notion that the juvenile court on September 27, 2011, was
required to take steps beyond those spread of record on October 19 and November 9 when
Rico was adjudged a dependent minor and made a ward of the court. Although the order of
June 27, 2011, returned custody of Rico to Bernadine, the juvenile court retained jurisdiction
over the parties to act in Rico’s best interests “until further order of the Court.” The June 27
order did not reset the due process clock to require more than what the juvenile court did here
on September 27. Rico’s case was never closed, though that was the intended purpose of the
September 27 court hearing had the August incident resulting in Rico’s fifth hospitalization
not occurred. However, just as the parties were properly before the juvenile court on
September 27, the juvenile court was well within its authority to act in Rico’s best interests
by vacating the protective supervision order over Bernadine’s objection, which reverted
guardianship of Rico to DCFS. P.P., 261 Ill. App. 3d at 602.
¶ 70 Nor do we agree with Bernadine’s contention that a petition alleging a violation of the
protective supervision order was statutorily required. Notably, Bernadine provides us no
authority to that effect. Nor does she claim that she abided by all the terms of the protective
supervision order. The record makes it indisputable that Bernadine did not call DCFS within
24 hours of Rico’s hospitalization. The record also establishes, based on Bernadine’s own
testimony, that the late August incident brought to light Rico’s need for additional services.
Given that Bernadine was found, through no fault of her own, unfit or unable to care for Rico
at the adjudication hearing in October 2010, the testimony she gave on September 27, 2011,
was more than sufficient to prove by a preponderance of the evidence that she was once
again unable to care for Rico. The juvenile court’s action taken on September 27, 2011,
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based on Rico’s best interest followed from its earlier “no-fault” dependency rulings, as
characterized by Bernadine, in October and November 2010. None of the authority cited by
Bernadine supports her contention that “the removal of children from parents over their
objection” is not authorized under the facts and circumstances of this case. See In re April
C., 326 Ill. App. 3d 245, 256 (2001) (“Pursuant to section 2-27 of the Juvenile Court Act of
1987, a minor may be adjudged a ward of the court and custody taken away from the parents
where it is determined that the parents are either unfit or unable, for some reason other than
financial circumstances alone, to care for, protect, train or discipline a minor ***.” (citing
705 ILCS 405/2-27(1) (West 1998))). Bernadine was given ample opportunity to be heard
by the court on September 27, 2011.
¶ 71 In the final analysis, however, we are presented with no authority that mandates a petition
termed “for a change of custody” or one alleging a violation of section 2-24 of the Act be
filed before a juvenile court may act in the best interests of a minor placed in its “protective
supervision.” P.P., 261 Ill. App. 3d at 602. Most importantly, no showing has been made as
to how the filing of such a petition would have changed the outcome below.
¶ 72 Nor do we accept the contention of the amicus curiae that the juvenile court acted on
September 27, 2011, “solely on the mental health needs of the child.” While we agree with
the amicus that “[a] child’s mental health needs cannot [alone] render a parent ‘unable,’ ” for
purposes of section 2-27, a juvenile court may find a parent “unable” to meet the needs of
a child with mental health problems when the child is effectively “locked” out of the home,
as occurred here following Rico’s fourth hospitalization in March 2010. A juvenile court has
authority to reenter such a finding by issuing a modified dispositional order at a progress
report hearing, after the court has heard all the evidence offered by the parties, where nearly
two years of supportive services have been provided. The question before the juvenile court
on September 27, 2011, was whether Rico’s best interests would be served by reverting
custody to DCFS. The record amply supports the juvenile court’s answer of yes.
¶ 73 Rico came to the attention of DCFS because of his mental health needs. On Rico’s fourth
hospitalization, DCFS was informed that Bernadine refused to pick up Rico after he was
medically cleared for discharge from Hartgrove Hospital. At the time, Bernadine informed
DCFS that she could not handle Rico’s behavior or keep him at home. The juvenile court
awarded temporary custody of Rico to the DCFS Guardianship Administrator and DCFS
placed Rico with Lydia Home. Rico was hospitalized for the fifth time in late August 2011,
following his “meltdown” at Bernadine’s home. At the court hearing on September 27, 2011,
Bernadine testified that she wanted Rico to receive “[w]hatever help can be given to him that
would help him *** function normally and independently.” Bernadine acknowledged that
Rico “needs” that help. In response to questions by the juvenile judge, Bernadine stated,
“[T]herapy and medication are not correcting whatever is wrong [with Rico].” To the court’s
explicit question, “Whatever services he was receiving before this happened, you don’t think
are doing the job?”, Bernadine answered, “No, sir.”
¶ 74 We reject any application to the circumstances present in this case the contention in the
amicus brief that “if there are appropriates services that have not yet been tried, a court
cannot find those services have failed.” That services “not yet” tried cannot be found to have
failed is undeniably true. The question before the juvenile court at the September 27 hearing
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concerned whether Rico’s best interests would be served by having additional services
provided while in guardianship of DCFS or Bernadine. The court ruled Rico’s best interests
would be served by dedicating additional resources to Rico while in the guardianship of
DCFS, as he was in 2010, “before he can be safely returned home.” We stress that the court
did not terminate Bernadine’s parental rights. See In re T.B., 215 Ill. App. 3d 1059, 1061
(1991) (“the term ‘unfit’ in the section relating to removing custody and guardianship from
a parent following a finding of neglect differs in meaning from the unfitness required to be
found for termination of parental rights for purposes of appointing a guardian with consent
to adopt”).
¶ 75 The court’s ruling vacating the protective supervision order, which had placed
guardianship of Rico with Bernadine, was neither against the manifest weight of the evidence
nor an abuse of discretion.
¶ 76 We make clear what we intimated above. There is no merit to the argument by Bernadine
that notwithstanding the unchallenged 2010 finding under section 2-27, before guardianship
of Rico could be returned to DCFS as a matter of his own best interest, new findings under
section 2-27 had to be made where Rico was in Bernadine’s custody from June 17, 2011,
until she hospitalized Rico a little more than two months later in August 2011. In a
proceeding that results in the entry of a dispositional order under section 2-27, the circuit
court must make three findings:
“(1) the parents are unfit or unable for reasons other than financial circumstances alone
or are unwilling to care for, train, protect, or discipline the minor; and (2) services aimed
at family preservation and reinforcement have been unsuccessful in rectifying the
conditions leading to findings of unfitness or inability; and (3) the best interests of the
minor require custody be placed with someone other than the parents. [Citation.]”
(Emphases in original.) Id. at 1062.
¶ 77 On September 27, 2011, following the evidentiary hearing, the juvenile court entered a
modified dispositional hearing because the adjudicatory ruling in October 2010 was
unaffected by the transfer of guardianship of Rico from DCFS to Bernadine on June 17,
2011. We are unpersuaded that more than occurred here was required of the juvenile court
to act in Rico’s best interests. “A parent’s right to custody of the child does not prevail where
the court has determined such custody would be contrary to the best interests of the child.”
Id.
¶ 78 We reject the notion that whenever guardianship is returned to a parent the juvenile
court’s knowledge of the proceedings, including explicit findings under section 2-27 and the
conditions of a section 2-24 protective supervision order, must be set aside before the court
may act in the best interests of the minor. There is no authority for that proposition; we find
that proposition contrary to the primary purpose of the Act to protect the welfare of minors.
In re Austin W., 214 Ill. 2d 31, 50 (2005).
¶ 79 Nor do we agree that a finding of “unable” under section 2-27 must be grounded
exclusively on a parent’s lack of aptitude or attitude to care for the child, as the amicus
contends. While this case might well fall under the rubric of a parent lacking the appropriate
“aptitude due to an irremediable condition such as mental retardation” to permit a change in
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custody under the rubric urged by the amicus, Bernadine coped as well as she could given
Rico’s emotional and behavioral problems. As we made clear above, Bernadine was at the
end of her rope in dealing with Rico at the time he was hospitalized for the fourth time; we
defer to the juvenile court in its decision that Rico’s best interests would be served by
returning guardianship to DCFS while additional services are provided, where no termination
of parental rights is involved. We strongly disagree with the suggestion by Bernadine that the
juvenile court acted precipitously in its ruling of September 27, 2011.
¶ 80 We conclude that the procedural posture of this case did not preclude the juvenile court
from taking the action it did on September 27, 2011. While all parties would have been better
served by the filing of supplemental petitions seeking a return of guardianship to DCFS and
alleging a violation of the protective supervision order, we note neither precedent nor statute
precludes the juvenile court from acting in conformity with Rico’s best interests, even when
Bernadine was not at fault for being unable to provide the care Rico needs. We conclude that
the entry of a protective supervision order on June 17, 2011, permitted the juvenile court to
enter a modified dispositional order following an evidentiary hearing on September 27, 2011,
which more than supports the court’s exercise of its wide discretion in considering evidence
that is relevant and helpful to the court’s determination of a proper disposition. In re C.H.,
398 Ill. App. 3d 603, 607 (2010).
¶ 81 Bernadine also challenges the juvenile court’s ruling that Bernadine was “unable to care”
for Rico as unsupported by the record evidence. She asserts: “The record is bereft of any
factual or legal basis for the finding that Ms. L. was unable to care for R.L. at the time of the
September 27, 2011 hearing.” Bernadine quotes the Act’s provision “that the court must
‘put[ ] in writing the factual basis supporting the determination of whether the parents,
guardian, or legal custodian of a minor adjudged a ward of the court are unfit or are unable’ ”
(emphasis in original) (quoting 705 ILCS 405/2-27 (West 2010)). Bernadine contends that
the evidence spread of record on September 27, 2011, did not contain “specific findings as
to Ms. L.’s inability to care for R.L.”
¶ 82 As we made clear above, the record before this court is not limited to the proceedings on
September 27, 2011, for good reason. The case began in 2010, and the dispositional findings
entered on November 9, 2010, became final when no timely appeal was taken. Bernadine
does not now challenge the court’s initial dispositional order of November 9, 2010, placing
Rico under DCFS guardianship; nor can she at this point in the proceedings. We are
unpersuaded that a greater showing is required for the court’s actions on September 27, 2011,
under Illinois law than is present in the record before us.
¶ 83 Finally, we address in short order Bernadine’s contention that her appointed counsel
rendered ineffective assistance during the proceedings on September 27, 2011, before the
juvenile court. While Bernadine argues her counsel “violated Rules 1.2 and 1.3 of the Illinois
Rules of Professional Conduct and *** [his representation was] objectively unreasonable
under Illinois law,” we find nothing in the record to support her contentions. Ultimately,
however, we reject the notion that had counsel engaged in the “minimal steps” urged by
Bernadine’s appellate counsel in this nontermination-of-parental-rights case, the outcome of
the proceedings below would have differed. Cf. In re W.L.W., 299 Ill. App. 3d 881, 885
(1998) (“parents are entitled to effective assistance of counsel in proceedings that seek
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termination of their parental rights”). Nor do we accept appellate counsel’s implicit claim
that the juvenile court’s decision to vacate the protective supervision order was influenced
by questions put to Bernadine and the DCFS caseworker by Bernadine’s trial counsel. The
circuit court judge was intimately familiar with the case. As he did in each of his prior
rulings, the juvenile court judge acted in Rico’s best interests in exercising his discretion. We
reject Bernadine’s claim that trial counsel provided her with constitutionally deficient
assistance. See In re D.M., 258 Ill. App. 3d 669, 674 (1994) (the party alleging ineffective
assistance bears a heavy burden to overcome the strong presumption that counsel acted
reasonably in light of the totality of the circumstances).
¶ 84 CONCLUSION
¶ 85 Following adjudicatory and dispositional hearings in 2010, the juvenile court found Rico
to be dependent under section 2-4 of the Act and adjudged him a ward of the court, with
guardianship placed with DCFS. On June 17, 2011, guardianship of Rico was returned to his
mother, Bernadine, under a protective supervision order pursuant to section 2-24 of the Act.
On September 27, 2011, at the scheduled hearing for possible closure of the case, the court
conducted an evidentiary hearing, after which it vacated the protective supervision order,
which reverted custody of the minor to DCFS, and issued a modified dispositional order,
which found Bernadine “unable” to provide for Rico. The juvenile court’s rulings of
September 27 were neither against the manifest weight of the evidence nor an abuse of
discretion as the court properly ruled the minor’s best interests warranted the court’s action.
Nor did Bernadine’s appointed counsel render ineffective assistance of counsel.
¶ 86 Affirmed.
¶ 87 JUSTICE GORDON, dissenting.
¶ 88 Since there was no petition filed in this case to change custody, I must respectfully
dissent. Although the majority acknowledges that “it would have been better” if the court had
required the filing of a petition for a change of custody, the majority nonetheless places its
stamp of approval on this action by affirming. Supra ¶ 80. By affirming, we are inviting it
to happen, again and again.
¶ 89 BACKGROUND
¶ 90 First, I will sketch out the few facts needed to understand my concerns.
¶ 91 At age 37 and single, Bernadine, the mother in this case, decided to become a foster
parent. She had been employed for over 20 years in the accounting department of the same
corporation. She also had a four-bedroom, single-family home.
¶ 92 Rico was initially placed with Bernadine when he was 4 years old, and the adoption was
complete when he was 10. At the same time, Bernadine also adopted Rico’s younger brother,
Rudolph. Rico will turn 16 this September.
¶ 93 Rico has serious mental health issues. When he was less than four years old, he was
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physically abused and abandoned. He is bipolar, and he has attention deficit hyperactivity
disorder, post-traumatic stress disorder and other problems. Nonetheless, there appears to be
a strong bond between mother and child. At the last hearing, the guardian ad litem informed
the court that all the child wanted was to go home and the mother, for her part, is fighting to
keep custody.
¶ 94 After the mother had Rico hospitalized several times for psychiatric disorders and while
Rico was in the hospital, the State filed a petition for adjudication of wardship and a motion
for temporary custody. The petition alleged that Rico was dependent in that he was without
proper care through no fault of his custodian.1 On March 17, 2010, the court awarded
temporary custody to DCFS. On April 12, 2010, Rico was released from the hospital and
placed in a residential treatment facility due to his multiple mental health diagnoses. The
assessment done during Rico’s first month at the treatment facility stated that, if he could
choose, Rico would “go back home” and that the mother was “invested in the child.”
¶ 95 In this case, the juvenile court has issued three dispositional orders in all. The first
dispositional order, on November 9, 2010, placed the child in DCFS guardianship with a
return-home goal of 12 months. The mother later filed a motion to return the child home, and
in response, on June 17, 2011, the court issued its second dispositional order, which returned
custody to the mother and found that being a ward of the State was no longer in the minor’s
best interests. On June 17, the court issued two separate orders: the dispositional order
described above; and an order of protective supervision that required the child to attend all
psychiatric appointments and to take all prescribed medication, as well as other conditions.
After the second dispositional order, Rico returned home but was rehospitalized.
¶ 96 On September 27, 2011, the case was scheduled for a proceeding to discharge the case.
However, instead, the trial court issued its third dispositional order, which changed custody
from the mother to DCFS. The trial court changed custody, even though there was no petition
or motion pending to change custody and even though DCFS’s counsel specifically asked
that custody not change. Thus, the entity that was granted custody did not want it. DCFS’s
counsel also asked for a continuance to present additional evidence, which was also denied.
DCFS’s counsel warned that Rico “would have to stay at the hospital until a placement could
be located” and this “could take a long period of time.” It is this third dispositional order that
is the subject of this appeal and that is troublesome.
¶ 97 On appeal, the mother argues that there is no reason for her to lose legal custody just so
that her child can receive services and that she wants to participate in the decision-making
process concerning his placement.
¶ 98 In addition, the mother challenges the September 27 hearing on the ground that the State
failed to file a petition to change custody. For the reasons discussed below, I agree with the
mother.
1
The majority states that the mother “characterized” the court’s orders in October and
November 2010 as “no-fault.” Supra ¶ 70. This was not merely a party’s biased characterization. For
example, on October 19, 2010, the trial court found that the child was dependent “through no fault,
neglect, or lack of concern” by the mother. (Internal quotation marks omitted.) Supra ¶ 19.
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¶ 99 ANALYSIS
¶ 100 The centerpiece of the majority’s opinion is the P.P. decision. In re P.P., 261 Ill. App.
3d 598 (1994). The majority cites that decision for the proposition that the State did not have
to file a supplemental petition for a change in custody or hold a hearing specifically on a
change-in-custody petition (supra ¶¶ 60-65)–but that is exactly what was done in P.P. P.P.
stands for the opposite proposition.
¶ 101 In P.P., as in our case, the trial court returned custody of the child to the mother but
entered an order of protective supervision. P.P., 261 Ill. App. 3d at 599. In P.P., as in our
case, a new incident occurred after the protective order was entered. P.P., 261 Ill. App. 3d
at 599. However, completely unlike our case, the guardian ad litem (GAL) in P.P. asked for
a continuance in order to file a supplemental petition and to hold a hearing on the specific
issue of whether the child should be removed from the mother’s custody. P.P., 261 Ill. App.
3d at 599; see also In re Austin W., 214 Ill. 2d 31, 41 (2005) (GAL filed a petition to change
custody). As a result, our case lacked what the P.P. case had–notice. The September 27,
2011, hearing at which the mother in our case lost custody was scheduled to be simply the
occasion for a progress report and a hearing to close the case. Supra ¶¶ 31, 69, 85. In fact,
the court announced at the start of the hearing that it was “for progress report and possibly
a motion to close the case.” As a result, the mother was not given notice, prior to the hearing,
that it was for the purpose of changing custody.
¶ 102 There is no question that, in P.P., there was a petition filed seeking to change custody and
a hearing held on the change-of-custody issue. First, the GAL in P.P. asked for a continuance
specifically for the purpose of permitting the filing of a “supplemental petition” and “a
hearing to determine whether P.P. should be removed from [the mother’s] custody.” P.P.,
261 Ill. App. 3d at 599. It would be odd to ask for a continuance specifically in order to file
a petition about changing custody and then file a petition with content on a completely
different topic. Second, the opinion states that the content of the petitions subsequently filed
by both DCFS and the GAL did, in fact, ask for a change of custody, namely, that a DCFS
administrator “be appointed guardian with the right to place” the minor. P.P., 261 Ill. App.
3d at 600. Third, acting in response to the petitions’ content, the trial court then held a
hearing and did, in fact, change custody from the mother to DCFS. P.P., 261 Ill. App. 3d at
600. Fourth, it was based on the petitions’ substance and the ensuing hearing that the
appellate court found that the petitions would have been “more properly termed” or labeled
as what they actually were, namely, petitions for “change of custody,” rather than simply
“supplemental petitions.” P.P., 261 Ill. App. 3d at 600. Thus, these facts establish that the
petitions in P.P. and the hearing held on them concerned change of custody. The appellate
court did regret that the mislabeling and the lack of citation to specific statutory sections
created “some confusion or lack of clarity,” indicating that this would not be the best course
of action to follow in the future. P.P., 261 Ill. App. 3d at 601. However, at least in P.P., the
petitions gave the mother some notice. In our case, there was no petition at all, which led to
even more “confusion” and “lack of clarity” (P.P., 261 Ill. App. 3d at 601) and absolutely
no notice was given.
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¶ 103 In P.P., the appellate court held that the lower court had the authority to change custody
both: (1) pursuant to section 2-28 and the filed petition; and (2) “upon a determination that
the *** order of protective supervision had been violated.” P.P., 261 Ill. App. 3d at 601. By
contrast, in our case, (1) no petition was filed, and (2) the trial court never made a factual
determination that the order of protective supervision had been violated. Supra ¶ 2 (the
mother appealed the lack of a determination), ¶ 52 (the trial court’s ruling shows that no
determination was made), ¶ 65 (the majority makes its own factual finding that there is no
real dispute about what the determination would have been if the trial court had made a
determination), ¶ 78 (the majority rejects “the notion” that such a determination is required).
¶ 104 The majority’s opinion finds that the mother waived this issue by failing to object at the
hearing to the lack of a petition (supra ¶ 65)–but how can we fault her for failing to object
to something that should have provided her with notice? What mother in her right mind
would ask the State to file a petition to change her custody? More importantly, why would
we, the appellate court, place the burden on a mother, who very much wants to keep her
child, to ask the State to file a petition to change her custody?
¶ 105 It is absolute black-letter law that when a hearing is held to change custody, the burden
of proof is on the person who filed the petition to show, by a preponderance of the evidence,
that the change in custody is in the best interests of the child. In re Austin W., 214 Ill. 2d at
51. Often, the person who files is the GAL. E.g., In re Austin W., 214 Ill. 2d at 33; P.P., 261
Ill. App. 3d at 599. After the filing person presents her evidence and rests, then the person
opposing the petition can decide whether to present opposing evidence. The trial court then
issues its determination. It is then the job of the appellate court to decide whether the trial
court’s determination–that the filing person satisfied her burden–is against the manifest
weight of the evidence. In re Austin W., 214 Ill. 2d at 52. If no one filed a petition, then who
bears the burden and how do we review whether the burden has been met?
¶ 106 In the case at bar, the GAL did not file a petition. At the conclusion of the hearing,
counsel for DCFS requested a continuance to present further evidence before the court issued
a ruling (supra ¶ 47), and that request was denied. The GAL stated that, although she thought
that the order of protection should be vacated, she had to respond “as his attorney, Rico
definitely wants to go home.” Counsel for DCFS stated that DCFS wanted the child to
remain at home with his mother, with services in place. The proceeding before us lacks a
clear proponent and a clear order in the presentation of proof, and thus the issue of burdens
cannot be determined. This shows why the filing of a petition is a good idea, because it
clarifies the parties’ burdens and the order of proof.
¶ 107 With all due respect, the majority also seems unclear about the burden of proof. The
majority states repeatedly that “Bernadine fails to inform this court how the filing of a
petition for a change of custody or one alleging a violation of the protective supervision order
would have changed the outcome below.” Supra ¶¶ 65, 71. The majority thus places the
burden of proof on the mother, without any citation to law or case authority. The majority
places the burden on the mother to show how the outcome would have been different if she
had notice. However, it is black-letter law that the burden of the proof is on the person who
filed the petition–certainly not the mother in this case–to show that the change in custody
was in the best interests of the child. In re Austin W., 214 Ill. 2d at 51. Thus, the burden is
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on the State–not the mother–to show that the lack of notice did not affect the outcome. In the
case at bar, the State cannot meet this burden considering that, without a petition before it
alleging a violation of the protective order, the trial court failed to make any finding that a
violation did or did not occur; and even DCFS believed that the change-of-custody decision
was premature without the hospital records.
¶ 108 On this appeal, the mother objects to the fact that there was no petition of any kind filed
in this case–neither a petition under section 2-28 to change custody (705 ILCS 405/2-28(4)
(West 2010)),2 nor one under section 2-26 to enforce the court’s prior order of protective
supervision (705 ILCS 405/2-26 (West 2010)).3 In this case, the court entered two orders on
June 17, 2011: a dispositional order that returned custody of the child to the mother and an
order of protective supervision that required the child to attend all psychiatric appointments
and to take all prescribed medication, as well as other conditions. These orders were entered
in response to the mother’s motion for a return-home disposition. Section 2-26, which is
entitled “[e]nforcement of orders of protective supervision or of protection,” provides for
enforcement of protective orders through a contempt procedure. 705 ILCS 405/2-26 (West
2010).4 On appeal, the mother objects on the ground that the lack of any type of petition cast
the parties into a procedural swamp without a clear statutory compass. This is particularly
troubling since, in this area of law, courts are authorized to act only according to statute. In
re Chara C., 279 Ill. App. 3d 761, 765 (1996). Where a court’s power to act is controlled by
statute, as it is here, the court is governed by the rules of limited jurisdiction and it may
proceed only within the lines of the statute. In re Chara C., 279 Ill. App. 3d at 765.
¶ 109 The lack of a petition also potentially raises concerns about our subject matter
jurisdiction. A court has an independent duty to consider subject matter jurisidiction even
when, as here, neither party raised it as an issue. Although a dispositional order is subject to
modification until the final closing and discharge of the proceedings under section 2-31,
section 2-23 requires that any such modification be “not inconsistent with Section 2-28.” 705
ILCS 405/2-23(2) (West 2010); see also 705 ILCS 405/2-28, 2-31 (West 2010). In In re
Austin W., our supreme court emphasized that any modification must be done “in a manner
consistent with the provisions of section 2-28,” and then immediately quoted subsection (4)
2
The majority holds that a petition for change of custody was not required and then claims
“[n]or does Bernadine assert such a contention.” Supra ¶ 65. In her brief to this court, Bernadine puts
forth several reasons to reverse, including: “the requirements of Section 2-28 for seeking a change
of custody of the minor *** were not followed; no petition for relief in accordance with any of these
applicable juvenile court procedures under Sections 2-24, 2-26, or 2-28 was filed.”
3
In her brief to this court, the mother specifically claimed that the lower court failed to
follow “the Juvenile Court Act’s process for finding a violation” of the order of protective
supervision. She further stated: “No petition to find a violation pursuant to Section 2-26 of the Act
had been filed and no violation was alleged, let alone found.”
4
The majority’s opinion criticizes the mother for failing to provide case law that the State
should have filed a motion or citation to enforce the protective order. Supra ¶ 70. The Act itself
provides for enforcement through a contempt procedure. 705 ILCS 405/2-26 (West 2010).
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of section 2-28. In re Austin W., 214 Ill. 2d at 43-44. Subsection (4) provides that “[t]he
minor or any person interested in the minor may apply to the court for a change in custody.”
705 ILCS 405/2-28(4) (West 2010). In the case at bar, there does not appear to be a formal
application, either written or orally, by a “person” to “change” custody. 705 ILCS 405/2-
28(4) (West 2010). Thus, although the dispositional order returning custody to the mother
was subject to modification since no final order to discharge proceedings was ever entered,
there is a question about whether the modification complied with section 2-28, as the
Juvenile Court Act requires.
¶ 110 In addition, the September 27 hearing started out as a proceeding to discharge the case.
Supra ¶ 69 (discharging the case was “the intended purpose of the September 27 court
hearing”). Section 2-31, which governs this type of proceeding, provides that, as part of the
final discharge order, the court may “continue or terminate any custodianship or
guardianship.” (Emphasis added.) 705 ILCS 405/2-31(2) (West 2010). Our legislature
specifically chose not to use the word “change,” which it had used previously in the Act–in
section 2-28, for example. Thus, while the court could have “continue[d]” the mother’s
custody or “terminate[d]” the GAL’s guardianship, the clear language of the section did not
authorize the court to change custody from one custodian to another.5
¶ 111 There is even a question about whether the child was still a ward of the State. In its June
17, 2011, order, the juvenile court held that, while the child had been “previously adjudged
a ward of the court,” presently “[i]t is no longer in the best interest of the minor to be a ward
of the state.” As the State concedes in its brief to this court, without wardship, a juvenile
court lacks the authority to enter dispositional orders concerning a minor.
¶ 112 The State argues that the mother waived her claim that the juvenile court lacked the
authority to act when she did not object below. The State cites in support In re William H.,
407 Ill. App. 3d 858, 869-70 (2011). In that case, the mother challenged the merits of the
wardship decision, not the juvenile court’s authority to act. If a juvenile court lacks authority
to act then it lacks authority, whether or not there is an objection, and the order is void; and
if it lacks authority, so do we.
¶ 113 The majority observes that the mother chose not to appeal the first dispositional order,
issued on November 9, 2010, which placed the child in DCFS guardianship with a return-
home goal of 12 months. Supra ¶ 64. The opinion states that, since this was a final,
appealable order, it then became “the law of the case.” Supra ¶¶ 64, 81. Like the first
dispositional order, the second dispositional order–which returned custody to the mother and
found that being a ward of the State was no longer in the minor’s best interests–was also a
5
The majority’s opinion avoids the “change” issue by stating that, when the court vacated
the June 17 protective order, custody passively “reverted” to DCFS. Supra ¶¶ 53, 69, 72. See also
supra ¶ 1; In re P.P., 261 Ill. App. 3d at 601 (criticizing the lower court for assuming that, by
vacating the protective order, custody “ ‘reverted’ ” to DCFS). There were two separate orders
entered on June 17: a protective order; and the second dispositional order. A court could certainly
vacate a protective order while leaving a dispositional order in place. What gave custody to DCFS
on September 27 was the third dispositional order that affirmatively changed custody from the
mother to DCFS. Supra ¶ 53.
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final, appealable order. In re Austin, 214 Ill. 2d at 44 (“dispositional orders are generally
considered ‘final’ for purposes of appeal”). By the same token, when the State chose not to
appeal, the second order then became the law of the case, superseding the first order, and the
mother’s choice not to appeal the first order became irrelevant.
¶ 114 CONCLUSION
¶ 115 Since the failure of anyone to file a petition to change custody resulted in a lack of notice
to the mother, a confusing procedure and concerns about our subject matter jurisdiction, I
must respectfully dissent.
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