Patricia S., In re
| Decision Date | 26 November 1991 |
| Docket Number | No. 1-90-2098,1-90-2098 |
| Citation | 222 Ill.App.3d 585,584 N.E.2d 270,165 Ill.Dec. 91 |
| Parties | , 165 Ill.Dec. 91 In re PATRICIA S., Theresa F. and Harold Mitchell F., Anthony E., and Andrea L., Minors, Appellants (The People of the State of Illinois, Petitioner-Appellee, v. Barbara L., Danny E., and Jimmy S., Respondents). |
| Court | United States Appellate Court of Illinois |
Office of the Cook County Public Guardian, Chicago (Patrick T. Murphy, Michael G. Dsida, and Kathleen G. Kennedy, of counsel), for appellants.
Jack O'Malley, State's Attorney, County of Cook, Chicago (Renee Goldfarb and Susan S. Wigoda, of counsel), for petitioner-appellee.
The State's Attorney, on behalf of the Illinois Department of Children and Family Services (DCFS), filed petitions for adjudication of wardship in the interest of the minors involved in this case on the basis of alleged neglect by their mother. Prior to ruling at two temporary custody proceedings, the circuit court declined to conduct a hearing to determine whether DCFS had made reasonable efforts to prevent or eliminate the need to remove the children from their home (Ill.Rev.Stat.1989, ch. 37, par. 802-10(2)), stating its belief that such reasonable efforts findings need not be made before minors are taken from their parents' custody. The court then entered orders granting DCFS custody of the children without any indication that DCFS had made reasonable efforts to prevent or eliminate the need to remove the minors from their home. The public guardian, who had been appointed attorney and guardian ad litem for the minors, agreed that it was in the best interest of the minors to remove them from their home but objected to the lack of a reasonable efforts hearing. 1 At the disposition hearing after a finding of neglect, the court found that DCFS had made reasonable efforts to reunite the family. The minors do not dispute the disposition order. Instead, they challenge the circuit court's refusal, at the temporary custody hearings, to determine whether DCFS had made reasonable efforts to keep the family intact. They assert that by not doing so, the court acted contrary to their best interests and violated state and federal law. They ask that the temporary custody orders be reversed and that the matter be remanded so that the court may make the required determinations.
In January 1989, DCFS caused to be filed petitions for adjudication of wardship of Theresa and Harold Mitchell F. (then 7 and 6 years old, respectively); Anthony E. (11 years old); and Patricia S. (10 years old). Each petition alleged parental neglect in not providing the care necessary for the minor's well-being and in having an environment injurious to the minor's welfare. At an ex parte hearing, the public guardian was appointed attorney and guardian ad litem for each child, and the court awarded DCFS temporary custody of each child. At a temporary custody hearing approximately five weeks later, the court vacated the earlier custody orders and entered an order of protection that provided for the mother's cooperation with DCFS, including drug counselling. None of these orders is appealed here.
Five months later, in July 1989, DCFS caused to be filed petitions for supplementary relief. These petitions alleged that the mother continued to use illegal drugs, consorted with other drug users, and had left one of the children with someone who forced the child to inhale paint thinner fumes, for which the child had to be taken to the hospital. The State asked that the court vacate the order of protection and that DCFS again be granted temporary custody. In addition, DCFS had caused to be filed a petition for adjudication of wardship in the interest of the mother's newborn child, Andrea L. At the hearing on these petitions, the public guardian agreed to DCFS custody but stated that he could not stipulate that DCFS had made reasonable efforts to keep the family together. He then suggested that the matter be set down for separate hearing. The court, however, replied, "I don't have to concern myself with reasonable efforts right now." Prior to its order awarding custody to DCFS, the court painstakingly questioned the mother to ascertain if she understood that the children would be taken temporarily from her. It did not query her, or anyone else, about DCFS efforts to prevent removal of the children even though the DCFS investigator and follow-up worker were present. The court then stated The court added The written orders give no indication as to what efforts, if any, DCFS had made to prevent or eliminate the need to remove the minors from their home.
At the next temporary custody hearing approximately one month later, the mother and Anthony E.'s father agreed to let the temporary custody order stand with prejudice. The public guardian also agreed to let the earlier order stand, but he qualified his agreement by stating, "I will not be in agreement of reasonable efforts in this case," a sentiment also voiced by the Public Defender, who represented the mother. When the court replied, "I don't necessarily have to [make a reasonable efforts finding] until I have heard some evidence," the State's Attorney stated that the only required findings at that juncture were probable cause, urgent and immediate necessity, and services. The court then let stand with prejudice its July orders giving DCFS temporary custody of the children. The public guardian again voiced his objection to the court's decision to order temporary custody with DCFS without a reasonable efforts determination.
At an adjudication hearing in February 1990, the court found the children to be neglected minors. At the disposition hearing the following June, three witnesses testified: a staff member from Harold and Theresa F.'s placement; a DCFS staff member; and the mother. At no time during examination or argument did counsel for either the mother or the minors challenge the adequacy of DCFS' efforts to prevent or eliminate the need to separate the minors from their mother. In closing argument, the public guardian acknowledged that the children's best interest would be served by making DCFS their guardian. The court then granted custody of each child to DCFS, expressly finding orally and in writing that "services [aimed at family preservation and family reunification were] incomplete" and "reasonable efforts were made to prevent or eliminate the need for removal [of the minors from the home]."
We first must address the State's contention that the circuit court's later disposition orders moot any appeal of the temporary custody orders and that the minors waived their right to appeal when they agreed that DCFS custody was in their best interest.
Even if we assume that the question raised here is moot, this court nevertheless may entertain this appeal because the mootness bar is not absolute. A court may consider moot issues if they concern "a question of great public interest" or if they are "capable of repetition, yet evading review." (In re A Minor (1989), 127 Ill.2d 247, 257-58, 130 Ill.Dec. 225, 229, 537 N.E.2d 292, 296.) Both exceptions apply here.
When deciding if a matter falls within the public interest exception, courts consider "(1) the public nature of the question, (2) the desirability of an authoritative determination for the purpose of guiding public officers, and (3) the likelihood that the question will generally recur." (A Minor, 127 Ill.2d at 257, 130 Ill.Dec. at 229, 537 N.E.2d at 296.) Under the fourteenth amendment, parents have a "fundamental liberty interest in the care, custody, and management of their child[ren,]" with which the government may not interfere unduly. (Santosky v. Kramer (1982), 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606.) The children have the concomitant right to remain with their parents. The issue this appeal presents is whether the circuit court, in declining to make the reasonable efforts determination before ordering removal of the children from their home, deprived the minors of their right to remain with their mother without complying with statutory due process safeguards. A matter of greater public concern is difficult to imagine. In re B.S. (1979), 73 Ill.App.3d 507, 509, 29 Ill.Dec. 505, 506, 392 N.E.2d 62, 63 ().
In addition, if the circuit court and the State's Attorney are mistaken in their belief that a court may order removal of children from their homes without hearing evidence on and making detailed determinations as to DCFS efforts to keep the family together, this court's ruling would help guide these public officials as to the prerequisites for a transfer of custody from a parent. Lastly, the question raised here likely will recur: it arose twice for these minors, and the circuit court continues to have jurisdiction over the minors, who can ask for modification of the disposition order. Thus, the question here falls squarely within the public interest exception to the mootness bar.
Events that are "capable of repetition yet evading review" also present justiciable questions despite mootness. To qualify under this exception, the minors must demonstrate that "(1) the challenged action is in its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same...
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