In re DS

• Decision Date: 21 June 2001
• Docket Number: No. 88460.,88460.
• Citation: 198 Ill.2d 309,261 Ill.Dec. 281,763 N.E.2d 251
• Parties: In re D.S., a Minor (D.S. et al., Appellees and Cross-Appellants, v. R.S. et al.; The People of the State of Illinois, Appellant and Cross-Appellee).
• Court: Illinois Supreme Court

763 N.E.2d 251

198 Ill.2d 309

261 Ill.Dec. 281

In re D.S., a Minor (D.S. et al., Appellees and Cross-Appellants, v. R.S. et al.; The People of the State of Illinois, Appellant and Cross-Appellee).

No. 88460.

Supreme Court of Illinois.

June 21, 2001.

As Modified on Denial of Rehearing February 4, 2002.

James E. Ryan, Attorney General, Springfield, David R. Akemann, States's Attorney, St. Charles (Joel D. Bertocchi, Solicitor General, William L. Browers, Lisa Ann Smith, Lisa Anne Hoffman, Assistant Attorneys General, Chicago, Norbert J. Goetten, Martin P. Moltz and Gregory L. Slovacek, Office of the State's Attorneys Appellate Prosecutor, Elgin, of counsel), for the People.

James D. Skaar, of Smith, Landmeier, Skaar & Elders, P.C., of Geneva, for appellees and cross-appellants.

Bruce A. Boyer and Christina Gabriel Kanelos, Chicago, for amicus curiae Children & Family Justice Center.

Renee Goldfarb, Kenneth T. McCurry, Nancy G. Kisicki, Assistant State's Attorneys, Chicago, for amicus curiae Richard A. Devine, Cook County State's Attorney.

Thomas Grippando, Lee Ann Lowder, Office of the Public Guardian, Chicago, for amicus curiae Patrick T. Murphy, Cook County Public Guardian.

Justice McMORROW delivered the opinion of the court:

The principal issue presented in this appeal is whether the constitutional doctrine of separation of powers, contained in article II, section 1, of the Illinois Constitution of 1970 (Ill. Const.1970, art. II, § 1), is violated when a circuit court issues an order directing the State's Attorney to prosecute a petition for the termination of parental rights, after the court has set a permanency goal for the minor consisting of substitute care pending a court determination on the termination petition. The circuit court of Kane County, after selecting its permanency goal for D.S., ordered the State's Attorney's office to prosecute a pending petition to terminate parental rights after the State had previously indicated that it would not undertake such prosecution. The State's Attorney appealed. The appellate court affirmed the judgment of the circuit court. 307 Ill.App.3d 249, 240 Ill.Dec. 464, 717 N.E.2d 557. This court allowed the State's petition for leave to appeal. 177 Ill.2d R. 315(a). For the reasons that follow, we affirm the judgment of the appellate court.

BACKGROUND

On September 9, 1993, D.S. and her three older sisters, R.S., R.S., and E.H., were removed from the home of their parents and taken into protective custody by the Department of Children and Family Services (DCFS) based upon evidence that they were neglected and abused minors.¹ Specifically, the State alleged in its "Second Amended Petition for Adjudication of Wardship" that the minors were subject to environmental neglect because the family home had been declared unfit for human habitation by the City of Aurora. The petition further alleged that the minors had been abused because their father presented a substantial risk of physical harm to them. On November 9, 1993, the children's parents waived an adjudicatory hearing and stipulated that the minors were environmentally neglected and abused. The circuit court adjudicated the minors to be wards of the court and ordered that they remain in the custody and guardianship of DCFS until further order. On November 10, 1993, the circuit court appointed CASA Kane County, Inc., a social service agency, as guardian ad litem (hereinafter GAL) to represent the minors.

On July 8, 1997, the GAL filed a verified petition in the circuit court to terminate the parental rights of the minors' parents. Count I of the termination petition was brought by the GAL on behalf of D.S. Count I of this petition was also brought by D.S., individually. Count II of the petition was brought by the GAL on behalf of R.S. and her sister R.S.² Both minor sisters objected to the termination petition filed on their behalf, stating that they did not wish their parents' rights to be terminated as to them. Accordingly, the attorney for the GAL withdrew his appearance on their behalf and they were appointed new counsel.

The petition to terminate parental rights proceeded solely as to D.S. The petition alleged that the parental rights of both of D.S.'s natural parents should be terminated because the parents were unfit in four respects. Specifically, the termination petition alleged that D.S.'s parents were unfit because they had failed to maintain a reasonable degree of interest, concern or responsibility with respect to D.S.'s welfare; had continuously and repeatedly neglected D.S. since her removal; had failed to protect D.S. from an injurious environment; and had failed to make reasonable efforts to correct the conditions that were the basis for removal of D.S. as well as reasonable progress toward the return of D.S. within 12 months after she was adjudicated neglected and abused. 750 ILCS 50/1(D)(b), (D)(d), (D)(g), (D)(m) (West 1998).

The petition to terminate parental rights stated that D.S. had resided with her foster parents continuously since the shelter care hearing in September, 1993, and alleged that the foster parents were "ready, willing and able to adopt [D.S.]" after the rights of the natural parents were terminated. The petition further alleged that "[t]he Kane County State's Attorney * * * has in the exercise of its discretion decided not to seek termination of parental rights in this proceeding," and requested that the circuit court "guarantee[ ] [D.S. and the GAL] the right to prosecute this petition."

In response, the State filed with the circuit court a motion to dismiss the termination petition filed by the GAL and D.S. The dismissal motion alleged that the State's Attorney is the only party authorized to prosecute a petition to terminate parental rights under the Juvenile Court Act. Because the State's Attorney's office, in the exercise of its discretion, had declined to seek termination of parental rights in this matter, the motion concluded that the petition must be dismissed.³ On August 26, 1997, the circuit court held that the GAL had standing to file (as opposed to prosecute) the petition to terminate parental rights on behalf of D.S. under section 2-13(1) of the Juvenile Court Act of 1987 (705 ILCS 405/2-13(1) (West 1998)), which provides in relevant part that "any adult person * * * may file * * * a petition with respect of a minor under this Act." The circuit court further ruled that D.S., as a minor, lacked both the standing and capacity to proceed individually to file a petition to terminate her parents' rights. Therefore, the circuit court granted the State's oral motion to dismiss D.S., individually, as a petitioner. The circuit court, however, reserved ruling on the question of whether the GAL had the authority to prosecute the termination petition.

On September 9, 1997, the circuit court denied the GAL's request to prosecute the petition to terminate parental rights. The court ruled that "there is no support in current Illinois law to allow for a termination petition to be prosecuted by any party other than the State," and that "the case law and the statute is very clear that it is within the sole discretion of the State's Attorney's Office to prosecute all proceedings." The circuit court further observed that it would be "contrary to public policy" as expressed in the Juvenile Court Act to allow any party other than the State to prosecute a termination petition.

The circuit court, however, did not dismiss the termination petition. The court ruled that the State had until September 23, 1997, to decide whether it would prosecute the petition filed by the GAL. On September 17, 1997, the State renewed its motion to dismiss the GAL's petition to terminate parental rights. The State alleged in its motion that "[a]fter consideration of the facts and circumstances which exist in the instant case at this time, and after considering the best interests of [D.S.], the People do not believe it is appropriate to proceed with a prosecution of the [termination petition] at this time."

On September 23, 1997, the circuit court denied the State's motion to dismiss the termination petition, pending a permanency review hearing with respect to the future status of D.S. In the course of his ruling, the circuit court judge observed that "with the addition to the Juvenile Court Act of the permanency review statute * * * the court has increased authority to direct the permanency goal. * * * If the court sets a permanency goal of adoption, then I believe that the court can direct * * * the State to prosecute a petition to terminate parental rights."

On October 28, 1997, the circuit court conducted the permanency review hearing. The court entered an order finding that DCFS's recently determined permanency goal for D.S. of foster home placement, with guardianship to remain in DCFS, was "not an appropriate goal." The court also noted in its order that the State still did "not wish to proceed" with respect to the petition to terminate parental rights filed on D.S.'s behalf.

Another permanency review hearing was conducted by the circuit court with respect to D.S. on January 16, 1998. In its order, the circuit court ruled that the appropriate permanency goal for D.S. was to place her permanent guardianship in her foster parents. The court found that this goal was in the best interests of D.S. "due to the length of current placement" (D.S. had been in the protective custody of her foster parents since 1993), D.S.'s "emotional and physical status," and "the lack of success at past attempts at reunification." The circuit court further ordered that "[a]ll parties shall work toward completion of and success of the permanency goal entered herein." The court, however, specifically stated in its order that it was not ruling out the permanency goal of substitute care pending a court determination on the termination of parental rights.

On March 24, 1998, the State again renewed its motion...