Kristen B. v. Dep't of Children & Family Servs.
| Docket Number | 1-20-0754 |
| Decision Date | 28 January 2022 |
| Citation | 2022 IL App (1st) 200754,203 N.E.3d 352,461 Ill.Dec. 198 |
| Parties | KRISTEN B., Chelsea J., Quincita F., and Kharis M., Plaintiffs-Appellants, v. The DEPARTMENT OF CHILDREN AND FAMILY SERVICES and Marc D. Smith, in His Official Capacity as Acting Director of Children and Family Services, Defendants-Appellees (T.B., W.C., J.T., Da. G., Do. G, and V.M., Intervenors-Appellees). |
| Court | United States Appellate Court of Illinois |
Sharone R. Mitchell Jr., Public Defender, of Chicago (Suzanne A. Isaacson, Assistant Public Defender, of counsel), for appellants.
Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Bridget DiBattista, Assistant Attorney General, of counsel), for appellees.
Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain and Mary Brigid Hayes, of counsel), for intervenors-appellees.
¶ 1 Plaintiffs Kristen B., Chelsea J., Quincita F., and Kharis M. are mothers of minor children who were temporarily removed from plaintiffs’ custody by the State and were living in foster care. Plaintiffs were granted supervised visits by the child protection division of the circuit court of Cook County. On March 25, 2020, one of the defendants, the Illinois Department of Children and Family Services (DCFS), issued "Action Transmittal 2020.02" (Updated) (March Action Transmittal), which suspended in-person supervised visits due to the COVID-19 pandemic. Plaintiffs filed a complaint in the chancery division of the circuit court that challenged the March Action Transmittal. The circuit court dismissed the complaint under section 2-619(a)(3) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(3) (West 2018)). On appeal, the parties dispute whether the cause is moot and whether the chancery action was void. Plaintiffs also contend that (1) the Code does not allow an intervenor to move to dismiss a complaint, (2) the chancery complaint action did not involve the same parties and same cause as any action pending in the child protection division, (3) the circuit court should have considered plaintiffs’ motion for leave to amend the complaint, and (4) the chancery complaint should have been dismissed without prejudice. We agree with plaintiffs that the dismissal should have been without prejudice and affirm the judgment as so modified.
¶ 3 The March Action Transmittal noted that the country and the citizens of Illinois were "currently experiencing an unprecedented public health crisis." In light of "the extreme circumstances" related to COVID-19 and the need to ensure that children's health was protected through social distancing, DCFS suspended all in-person supervised visits between parents and children in foster care and all sibling visits. DCFS directed staff and caregivers to identify alternative ways to allow parent-child and sibling contact during the crisis, including via phone calls and videoconferencing. Unsupervised visits were allowed to continue with the use of a pre-screening tool. At the time, plaintiffs were represented in their child protection cases by assistant public defenders.
¶ 5 On May 6, 2020, plaintiffs, via an assistant public defender, filed a complaint in the chancery division of the circuit court that stated in part as follows. Under various court orders, DCFS was required to provide in-person supervised visits to plaintiffs and their children. Because of the March Action Transmittal, defendants—DCFS and its acting director (collectively, the DCFS defendants)—refused to provide any in-person supervised visits. Each plaintiff wanted to continue the visits and asserted that the lack of visits was harmful to plaintiffs’ children. Plaintiffs sought an injunction and a declaratory judgment of the parties’ rights and responsibilities under the March Action Transmittal. Plaintiffs also asserted a claim under section 1983 of the federal Civil Rights Act ( 42 U.S.C. § 1983 (2018) ), stating that plaintiffs suffered damages from the March Action Transmittal and requesting such other and further relief as the court deemed equitable and just.
¶ 6 Plaintiffs also filed an emergency motion for a temporary restraining order (TRO) and preliminary injunction. Plaintiffs asserted in part that they had no adequate remedy in their pending child protection cases because the presiding judge had issued a gatekeeping order that limited access to the courts to emergencies. Further, plaintiffs were not allowed to proceed on an emergency basis on their motions to enforce existing visitation orders. Attached to the emergency motion were affidavits from plaintiffs’ attorneys in their child protection cases. The affidavits indicated that on certain dates in April 2020, the attorneys for Kristen B., Chelsea J., and Quincita F. filed emergency motions in the child protection division to restore visits. Kristen B.’s hearing was scheduled for June 3, 2020, Chelsea J.’s hearing was scheduled for May 22, 2020, and Quincita F.’s hearing was scheduled for May 29, 2020. Kharis M.’s attorney tried to file an emergency motion in the child protection division to restore visits but was told the motion would not be heard because a request for in-person visits was not an emergency.
¶ 7 On May 11, 2020, the Cook County public guardian, as the children's attorney and guardian ad litem , moved for leave to intervene, stating that plaintiffs’ children were each the subject of a pending proceeding in the child protection division. The children had an interest in ensuring that decisions about visits were based on individualized determinations that took into account all relevant factors. The public guardian's motion recalled the histories of the children's child protection cases and asserted that plaintiffs’ chancery complaint did not consider the reasons why the children were removed from their parents’ custody and the reasons the visits had to be supervised. The motion noted that the temporary custody order for Kharis M.’s child was scheduled for rehearing on May 22, 2020, and any party could request a review of the parent-child visitation plan during a temporary custody hearing.
¶ 8 Attached to the public guardian's motion for leave to intervene was a motion to dismiss under section 2-619(a)(3) of the Code because the chancery action involved the same parties and same cause as the pending child protection cases. The motion to dismiss further stated as follows. In each plaintiff's case, the child protection division had entered a visitation order after considering all relevant evidence. Three of the plaintiffs had pending motions for in-person visits in the child protection division. The fourth plaintiff's case was in the midst of a temporary custody hearing. Also, the court in the child protection cases had ongoing jurisdiction to review and modify parent-child visitation plans and orders for children. The child protection division was best suited to craft individualized solutions for the children and their parents that maintained health and safety.
¶ 9 At a hearing in the chancery division on May 14, 2020, plaintiffs’ counsel objected to the public guardian intervening, stating that there was no emergency basis for doing so. Further, the children's interests would be adequately represented by the DCFS defendants, who had legal responsibility for the children's health and welfare. The court granted the public guardian's motion for leave to intervene.
¶ 10 The hearing turned to the public guardian's motion to dismiss. Counsel for the DCFS defendants stated that she agreed with the motion and that she also intended to file a motion to dismiss. In arguing for dismissal, the public guardian stated that visitation was intrinsic to child protection cases and plaintiffs’ attorneys had filed motions in their child protection cases for in-person visits. The public guardian discussed the background of plaintiffs’ child protection cases, which he stated had complex facts. In response, plaintiffs’ counsel stated that there was ongoing harm because the emergency motions were not being heard in the child protection division. Further, the child protection division did not grant injunctions or have the power to hear section 1983 claims—a point disputed by the public guardian. Plaintiffs’ counsel acknowledged that the chancery matter was not a class action and the complaint only sought a remedy for the four named plaintiffs in the complaint.
¶ 11 Plaintiffs filed two motions in between the hearing and the court's subsequent order on the motion to dismiss. One motion, filed on May 15, 2020, was for leave to file an amended complaint that added a class action count and requested that the court certify a class of parents whose in-person supervised visits were suspended by the March Action Transmittal. The second motion, filed on May 18, 2020, was an emergency motion to supplement the record with a special order from the child protection division that listed continuance dates for cases previously scheduled for March 17, 2020, through June 5, 2020. The record does not indicate that the circuit court ruled on either motion.
¶ 12 On May 18, 2020, the chancery division issued a written order that dismissed the complaint with prejudice under section 2-619(a)(3) of the Code and found that plaintiffs’ motion for a TRO was moot. The court stated that all of the plaintiffs had upcoming hearings in the child protection division on individual motions to compel in-person visits. Since plaintiffs had pending abuse and/or neglect cases in the child protection division, that court addressed the very issues presented in the chancery matter. The child protection division was the appropriate forum for plaintiffs’ grievances. Plaintiffs did not present any unique issues that the child protection division was unable to handle in its ordinary proceedings.
¶ 13 Plaintiffs filed a notice of appeal on June...
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