NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion to
request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The official copy of the following opinion
will be published by the Supreme Court's Reporter of Decisions in the Official Reports advance
sheets following final action by the Court.
Docket No. 78678--Agenda 4--January 1996.
In re LAWRENCE M. et al., Minors (The Department of Children and
Family Services et al., Appellants).
Opinion filed August 2, 1996.
JUSTICE HARRISON delivered the opinion of the court:
In these consolidated interlocutory appeals, we are asked to
decide whether the circuit court has the authority under section 2-
-10 of the Juvenile Court Act of 1987 (705 ILCS 405/2--10(2) (West
1994)) to enter orders requiring the Department of Children and
Family Services (DCFS) to provide and pay for in-patient drug
treatment services for mothers whose children were removed from
their custody due to their mothers' drug-related neglect of them.
On nine separate occasions in 1993 and 1994, DCFS appealed from the
entry of such orders by the circuit court of Cook County, juvenile
division (hereinafter juvenile court). The appellate court
consolidated the appeals, and affirmed the juvenile court orders in
all but two instances. 269 Ill. App. 3d 253.
We allowed DCFS's petition for leave to appeal. 155 Ill. 2d R.
315. Separate appellees' briefs were filed by the office of the
Cook County public guardian, on behalf of the minor children, and
by the Cook County public defender, on behalf of the minors'
parents. "Appellees," as used in this opinion, refers,
interchangeably, to the minor children or to their parents. We
granted leave to the Austin Christian Law Center; the Children and
Family Justice Center of the Northwestern University School of Law;
and Illinois Action for Children, the Legal Assistance Foundation
of Chicago, and Joyce M. to file amicus curiae briefs in support of
appellees. 155 Ill. 2d R. 345.
Initially we note that, in an interlocutory appeal, the scope
of review is normally limited to an examination of whether or not
the trial court abused its discretion in granting or refusing the
requested interlocutory relief. See Dixon Ass'n for Retarded
Citizens v. Thompson, 91 Ill. 2d 518, 524 (1982); Kellerman v. MCI
Telecommunications Corp., 134 Ill. App. 3d 71, 73 (1985), aff'd,
112 Ill. 2d 428 (1986). However, where the question presented is
one of law, a reviewing court determines it independently of the
trial court's judgment. Best Coin-Op, Inc. v. Old Willow Falls
Condominium Ass'n, 120 Ill. App. 3d 830 (1983). Moreover, to the
extent necessary, a reviewing court may consider substantive issues
in order to determine whether the trial court acted within its
authority. See Wilson v. Wilson, 217 Ill. App. 3d 844, 859 (1991).
In the instant case, DCFS asserts that the juvenile court acted
outside its authority in directing DCFS to pay for drug treatment
services to the parents of minors before the court because such
orders are barred by the doctrine of sovereign immunity, violate
the doctrine of separation of powers, and are not authorized by the
Juvenile Court Act of 1987 (705 ILCS 405/1--1 et seq. (West 1994)).
Therefore, to the extent necessary to resolve these substantive
issues, we are not limited to the traditional scope of review of an
interlocutory appeal. See Dixon, 91 Ill. 2d at 524-25.
We first address the question of sovereign immunity in order
to determine whether the juvenile court had subject matter
jurisdiction. DCFS argues that the appellate court erred in holding
that the juvenile court orders did not violate the doctrine of
sovereign immunity, because each juvenile court order was directed
to DCFS, a State agency, to compel the expenditure of State funds.
We find little merit in this challenge. While sovereign immunity
dictates that the State can be sued only in the Court of Claims,
the determination of whether an action is in fact a suit against
the State turns upon an analysis of the issues involved and the
relief sought, rather than the formal designation of the parties.
Currie v. Lao, 148 Ill. 2d 151, 157-58 (1992); Healy v. Vaupel, 133
Ill. 2d 295, 308 (1990).
In the present case, the juvenile court sought to compel DCFS,
through Gary T. Morgan, its guardianship administrator and the
appointed temporary custodian of each of the minors, or Carlton
Williams, another DCFS administrator, to fulfill duties it believed
were mandated by the Juvenile Court Act. A suit against State
officials which seeks to compel them to perform their duty is not
held to be a suit against the State even though the duty to be
performed arises under a certain statute, and the payment of State
funds may be compelled. See In re V.H., 197 Ill. App. 3d 52, 58
(1990); Franks v. Tucker, 132 Ill. App. 3d 455, 461 (1985).
Therefore, the appellate court did not err in finding that the
juvenile court orders at issue here were not barred by the doctrine
of sovereign immunity, where the orders essentially directed DCFS
administrators to provide mandated services. 269 Ill. App. 3d at
256-57.
DCFS also contends that the juvenile court orders violated the
doctrine of separation of powers because the juvenile court usurped
the authority of DCFS to determine the proper services to be
provided for the families involved herein. The separation of powers
clause provides: "The legislative, executive and judicial branches
are separate. No branch shall exercise powers properly belonging to
another." Ill. Const. 1970, art. II, §1. However, the doctrine of
separation of powers was not designed to achieve a complete divorce
among the three branches of government, nor does it require
governmental powers to be divided into rigid, mutually exclusive
compartments. In re J.J., 142 Ill. 2d 1, 7 (1991). There are
instances in which the separate spheres of governmental authority
overlap (In re J.J., 142 Ill. 2d at 7), and this is an excellent
example of one of them.
The legislature has designated DCFS as the State agency
authorized to provide social services to children and their
families which are directed toward, inter alia, "preventing or
remedying, or assisting in the solution of problems which may
result in, the neglect, abuse, exploitation or delinquency of
children." 20 ILCS 505/1, 5(a)(3)(B) (West 1994). However, the
legislature has also authorized the juvenile court, in dealing with
a minor it has probable cause to believe is abused, neglected or
dependent, to enter orders for the "provision of services to the
minor or his family to ameliorate the causes contributing to the
finding of probable cause." 705 ILCS 405/2--10(2) (West 1994).
Therefore, the "evil" of the court's usurping the executive
discretion of DCFS in providing child welfare services is absent in
abuse and neglect proceedings, where both DCFS and the court share
the duty of protecting the child's best interest and the goal of
preserving families whenever possible. See In re J.J., 142 Ill. 2d
at 8-9; see also 325 ILCS 5/2; 20 ILCS 505/5(a)(3)(C), (a)(3)(D);
705 ILCS 405/2--10(2), (9)(d) (West 1994). Indeed, section 8.4 of
the Abused and Neglected Child Reporting Act (325 ILCS 5/8.4 (West
1994)) requires that DCFS "provide or arrange for and monitor ***
rehabilitative services for children and their families on a
voluntary basis OR UNDER A FINAL OR INTERMEDIATE ORDER OF THE
COURT." (Emphasis added.) Thus, where it is clear that the
legislature contemplated interplay between DCFS and the juvenile
court in deciding the appropriate social services for neglected and
abused children and their families, the juvenile court orders
involved herein did not violate the doctrine of separation of
powers.
Having disposed of these preliminary matters, the central
issue presented for our resolution remains: whether the juvenile
court, pursuant to the Juvenile Court Act, may order DCFS to
provided and pay for in-patient drug treatment services for mothers
whose children are removed from their custody due to the mothers'
drug-related neglect of them. DCFS argues that the juvenile court
has no authority to exercise a power not specifically granted to it
by the Juvenile Court Act, and that because there is no statutory
authority requiring that DCFS provide and pay for drug treatment
services for the parents of minors, the juvenile court lacked
subject matter jurisdiction to enter the orders in question.
However, circuit court jurisdiction is conferred solely by the
constitution, except in the limited area of administrative review.
See Ill. Const. 1970, art. VI, §9; In re M.M., 156 Ill. 2d 53, 65
(1993). Therefore, contrary to DCFS's assertion, circuit courts no
longer seek statutory justification for the exercise of
jurisdiction. See In re M.M., 156 Ill. 2d at 75 (Miller, C.J.,
concurring). Further, while it is true that the constitutional
source of a circuit court's jurisdiction does not carry with it a
license to act in ways inconsistent with controlling statutory law
(see In re M.M., 156 Ill. 2d at 75 (Miller, C.J., concurring)), we
need not address that problem here because we believe the
applicable statutory provisions support the juvenile court's
orders.
It is the purpose and policy of the Juvenile Court Act to
preserve and strengthen the minor's family ties, removing him from
his family only when his welfare or safety or the protection of the
public cannot be adequately safeguarded. 705 ILCS 405/1--2(1) (West
1994). More particularly, section 2--10 of the Juvenile Court Act
(705 ILCS 405/2--10 (West 1994)), which pertains to temporary
custody proceedings following the filing of a petition alleging
that a minor is abused, neglected or dependent, is part of a
comprehensive statutory scheme designed to, in a just and speedy
manner, "determine families in need, reunify families where
appropriate and, if reunification is inappropriate, find other
permanent homes for children." 705 ILCS 405/2--14(a) (West 1994).
Section 2--10(2) of the Act provides, inter alia:
"If the minor is ordered placed in a shelter care
facility of the Department of Children and Family
Services or a licensed child welfare agency, the court
shall, upon request of the appropriate Department or
other agency, appoint the [DCFS] Guardianship
Administrator or other appropriate agency executive
temporary custodian of the minor and THE COURT MAY ENTER
SUCH OTHER ORDERS RELATED TO THE TEMPORARY CUSTODY AS IT
DEEMS FIT AND PROPER, INCLUDING THE PROVISION OF SERVICES
TO THE MINOR OR HIS FAMILY TO AMELIORATE THE CAUSES
CONTRIBUTING TO THE FINDING of probable cause or to the
finding of the existence of immediate and urgent
necessity." (Emphasis added.) 705 ILCS 405/2--10(2) (West
1994).
Appellees argue that the plain language of this section grants
the juvenile court the authority to enter orders for the provision
of drug treatment services for parents whose addiction has caused
or contributed to the minor's placement in shelter care. We agree,
not only because the Juvenile Court Act is to be liberally
construed to carry out its purpose and policies (705 ILCS 405/1--
2(4) (West 1994)), but more importantly, because other statutory
provisions make it clear that drug treatment for parents of
neglected and abused children was among the services the
legislature intended DCFS to provide.
The parties agree that the Juvenile Court Act, the Abused and
Neglected Child Reporting Act (325 ILCS 5/1 et seq. (West 1994)),
the Children and Family Services Act (20 ILCS 505/1 et seq. (West
1994)), and, to some extent, the Illinois Alcoholism and Other Drug
Dependency Act (20 ILCS 301/1--1 et seq. (West 1994)) must be
construed in concert to determine the powers and responsibilities
of DCFS in cases involving abuse or neglect resulting from parental
drug abuse. Under the Abused and Neglected Child Reporting Act,
once there is credible evidence that a child is abused or
neglected, DCFS must promptly notify the child and his family of
DCFS's responsibility to offer and provide "family preservation
services." 325 ILCS 5/8.2 (West 1994). Family preservation services
are defined in that same section as "all services to prevent the
placement of children in substitute care, to reunite them with
their families if so placed and if reunification is an appropriate
goal, or to maintain an adoptive placement." 325 ILCS 5/8.2 (West
1994). Such services include, but are not limited to, case
management services, homemaker, parent education, day care, medical
assistance, and counseling, which specifically includes drug and
alcohol abuse counseling. 325 ILCS 5/8.2 (West 1994).
The Children and Family Services Act states that DCFS shall
have the power to provide direct child welfare services. 20 ILCS
505/5 (West 1994). Section 5(a)(3) provides, in part:
" `Child welfare services' means public social
services which are directed toward the accomplishment of
the following purposes:
* * *
(B) preventing or remedying, or assisting in
the solution of problems which may result in, the
neglect, abuse, exploitation or delinquency of
children;
(C) preventing the unnecessary separation of
children from their families by identifying family
problems, assisting families in resolving their
problems, and preventing the breakup of the family
where the prevention of child removal is desirable
and possible;
(D) restoring to their families children who
have been removed, by the provision of services to
the child and the families." 20 ILCS 505/5(a)(3)(B)
through (a)(3)(D) (West 1994).
Section 5 of the Children and Family Services Act further
states: "Service programs shall be available throughout the State
and shall include but not be limited to the following services: (1)
case management; (2) homemakers; (3) COUNSELING; (4) parent
education; (5) day care; and (6) emergency assistance and
advocacy." (Emphasis added.) 20 ILCS 505/5(i) (West 1994). Indeed,
we find it worthy of note that section 5, which addresses in detail
DCFS's provision of direct child welfare services, places no
limitations on the expenditure of public funds save for the purpose
of performing abortions. See 20 ILCS 505/5(b) (West 1994). Rather,
section 5(l) mandates that DCFS "accept for family preservation
services, and *** provide appropriate services to, any family whose
child has been placed in substitute care *** or any persons whose
child or children are at risk of being placed outside their home"
because of a report of suspected child abuse or neglect. 20 ILCS
505/5(l) (West 1994).
Additionally, section 34.4 of the Children and Family Services
Act empowers DCFS "[t]o enter into referral agreements, on its own
behalf and on behalf of agencies funded by [DCFS], with licensed
alcohol and drug abuse treatment programs for the referral and
TREATMENT of clients with alcohol and drug abuse problems."
(Emphasis added.) 20 ILCS 505/34.4 (West 1994). While this language
seems to indicate that DCFS may enter into agreements to fund
substance abuse treatment of clients, DCFS argues that it is
required by statute only to recommend and refer adult clients to
other State agencies to obtain treatment. It is true that several
statutory provisions allude to DCFS's duty to recommend drug or
alcohol abuse treatment and to include any treatment
recommendations in the family's case or service plan. See 20 ILCS
505/34.5; 325 ILCS 5/8.2 (West 1994). However, these provisions do
not abrogate DCFS's responsibility to provide and pay for drug and
alcohol treatment services for parents who need these services to
preserve their families. Indeed, we have found no statutory
provisions which require DCFS to refer parents to other State
agencies to obtain services; rather, only sections requiring DCFS
to refer individuals to a licensed program or facility. See 20 ILCS
505/34.5; 325 ILCS 5/8.2 (West 1994).
DCFS also argues that under the Alcoholism and Other Drug
Abuse and Dependency Act, the Department of Alcoholism and
Substance Abuse (DASA) is the State agency responsible for paying
for drug and alcohol treatment. However, we agree with the
appellate court that there is nothing to indicate that DASA is the
exclusive State agency to provide substance abuse treatment.
"Rather, DASA was designed to work with other State agencies in
providing substance abuse treatment." 269 Ill. App. 3d at 261; see
20 ILCS 301/5--10(a)(4)(I), (a)(14) (West 1994). The Alcoholism and
Other Drug Abuse and Dependency Act provides, in its legislative
declaration, that "[t]he human, social, and economic benefits of
preventing alcohol and other drug abuse and dependence are great,
and IT IS IMPERATIVE THAT THERE BE INTERAGENCY COOPERATION IN THE
PLANNING AND DELIVERY OF ALCOHOL AND OTHER DRUG ABUSE prevention,
intervention, and TREATMENT EFFORTS IN ILLINOIS." (Emphasis added.)
20 ILCS 301/1--5 (West 1994).
Indeed, section 5--10(a)(4) of the Alcoholism and Other Drug
Abuse and Dependency Act specifies that DASA is to work with DCFS
to:
"(D) Assist in the placement of child abuse or
neglect perpetrators (identified by the Illinois
Department of Children and Family Services) who have been
determined to be in need of alcohol or other drug abuse
services pursuant to Section 8.2 of the Abused and
Neglected Child Reporting Act.
(E) Cooperate with and assist the Illinois
Department of Children and Family Services in carrying
out its mandates to:
(i) identify alcohol and other drug abuse issues
among its clients and their families; and
(ii) develop programs and services to deal with such
problems.
These programs and services may include, but shall not be
limited to, programs to prevent the abuse of alcohol or
other drugs by DCFS clients and their families,
rehabilitation services, identifying child care needs
within the array of alcohol and other drug abuse
services, and assistance with other issues as required."
20 ILCS 301/5--10(a)(4)(D), (a)(4)(E) (West 1994).
Therefore, contrary to DCFS's claim, the Alcoholism and Other Drug
Abuse and Dependency Act, like the Juvenile Court Act, Abused and
Neglected Child Reporting Act and the Children and Family Services
Act, demonstrates the intent of our legislature to mandate DCFS's
provision of drug treatment services to parents involved in
juvenile abuse and neglect proceedings as a result of their drug-
related neglect of their children.
Finally, DCFS argues that the appellate court's affirmance of
the juvenile court orders was premised on the false assumptions
that the orders were essential to the reunification of the families
in question, entered after DCFS had been afforded adequate time to
develop a treatment plan for the families, and interim in nature.
We first note that our review of the record supports the appellate
court's finding that, in each of the instant cases, DCFS did not
dispute the need for in-patient drug treatment, but simply claimed
that it should not be required to pay for such treatment. 269 Ill.
App. 3d at 258. Additionally, in all of the cases save one, where
the record is unclear, the drug treatment was either recommended by
DCFS itself or by a substance abuse professional. Therefore, we see
no error in the appellate court's finding that the orders were
essential to the reunification of the families in question.
Next, we address DCFS's contention that the juvenile court's
entry of orders for services prior to the filing of a case plan
pursuant to section 2--10.1 of the Juvenile Court Act (705 ILCS
405/2--10.1 (West 1994)) is premature. DCFS claims that there was
no time for it to investigate whether an in-patient drug treatment
program would be appropriate for the mothers in question. However,
a full review of the relevant statutes demonstrates that, in most
cases, DCFS should have a treatment plan in development prior to
the temporary custody hearing. Section 2--10(2) of the Juvenile
Court Act provides that, at the time of the temporary custody
hearing:
"The court shall require documentation from [DCFS] as to
the reasonable efforts that were made to prevent or
eliminate the necessity of removal of the minor from his
or her home or the reasons why no efforts reasonably
could be made to prevent or eliminate the necessity of
removal." 705 ILCS 405/2--10(2) (West 1994).
This language shows that DCFS must come to court with any and all
documentation of its service provision efforts.
In addition, both the Abused and Neglected Child Reporting Act
and the Children and Family Services Act address DCFS's
responsibility to create case plans and provide services to
children and families while under investigation by DCFS and before
juvenile court involvement. The Abused and Neglected Child
Reporting Act states that when DCFS's Child Protective Unit
determines there is credible evidence to believe that the child is
abused or neglected, DCFS "shall assess the family's need for
services, and, as necessary, develop, with the family, an
appropriate service plan for the family's voluntary acceptance or
refusal." 325 ILCS 5/8.2 (West 1994); see also 20 ILCS 505/34.5
(West 1994). Perhaps most significant is the provision in section
5(l) of the Children and Family Services Act that:
"[t]he child and his family shall be eligible for
services as soon as the report [of suspected child abuse
or neglect] is determined to be `indicated'. The
Department may offer services to any child or family with
respect to whom a report of suspected child abuse or
neglect has been filed, PRIOR to concluding its
investigation under Section 7.12 of the Abused and
Neglected Child Reporting Act." (Emphasis added.) 20 ILCS
Additionally, a review of the record shows that DCFS did not
argue in the juvenile court that entry of the orders was premature
because it did not yet have the opportunity to complete a case
plan. Rather, the record supports the appellate court's finding
that, in each of the cases, DCFS had sufficient time prior to the
entry of the order to determine the family's need for drug
treatment services.
We also believe that the appellate court correctly found that
the juvenile court did not impose a long-term obligation on DCFS.
The record shows that the juvenile court was interested in giving
these mothers an opportunity to reunite their families through
successful completion of an in-patient drug treatment program and
that the court "recognized the need to immediately place the
mothers in *** treatment programs since at the time the children
were removed from the home, the mothers were most motivated to
cooperate in order to get their children back." 269 Ill. App. 3d at
258. The orders at issue required DCFS to place the mothers in
appropriate treatment facilities and to guarantee payment to those
facilities. The orders did not prohibit DCFS from seeking funds
from DASA or other sources to pay for the mothers' treatment. See
20 ILCS 301/5--10(a)(14) (West 1994); see also 20 ILCS 505/34.6;
325 ILCS 5/8.2(e),(f) (West 1994). Thus, contrary to DCFS's
contention, the record does indicate that the juvenile court viewed
these orders as interim in nature.
Accordingly, we hold that the juvenile court is statutorily
authorized to order DCFS to provide and pay for in-patient drug
treatment services under the circumstances present herein, and that
the orders entered were supported by the record and therefore not
an abuse of the court's discretion.
For the foregoing reasons, the judgment of the appellate court
is affirmed.
Affirmed.
JUSTICE MILLER, dissenting:
I do not agree with the majority's determination that the
Department of Children and Family Services (DCFS or the Department)
may be required to pay the costs of the in-patient alcoholism and
drug abuse treatment ordered in these consolidated cases. I believe
that the present orders exceed the Department's statutorily defined
duties, and therefore I dissent.
I agree with the Department that its responsibility in these
circumstances is more limited than the majority envisions. An
examination of the relevant statutes demonstrates that the
Department is to make referrals for treatment of alcoholism and
drug abuse, but there is no provision that expressly authorizes or
requires the Department to pay the costs of in-patient treatment
for those conditions. Courts customarily defer to an administrative
agency's interpretation of ambiguous statutory language that the
agency is charged with enforcing. Reed v. Kusper, 154 Ill. 2d 77,
86 (1992); City of Decatur v. American Federation of State, County,
& Municipal Employees, Local 268, 122 Ill. 2d 353, 361 (1988);
Illinois Consolidated Telephone Co. v. Illinois Commerce Comm'n, 95
Ill. 2d 142, 152-53 (1983). I would apply that principle here and
would hold that the Department cannot be compelled to pay the costs
of in-patient alcoholism and drug abuse treatment programs for
parents of minors who come within the Department's jurisdiction.
A general statement of the trial court's powers in cases such
as these is found in section 2--10(2) of the Juvenile Court Act of
1987, which says:
other agency, appoint the Department of Children and
Family Services Guardianship Administrator or other
appropriate agency executive temporary custodian of the
minor and the court may enter such other orders related
to the temporary custody as it deems fit and proper,
including the provision of services to the minor or his
family to ameliorate the causes contributing to the
finding of probable cause or to the finding of the
existence of immediate and urgent necessity." 705 ILCS
405/2--10(2) (West 1994).
The language of section 2--10(2) authorizing the trial court
to enter orders designed to "ameliorate the causes" giving rise to
judicial intervention cannot be read so broadly that it produces an
absurd result. For example, I do not believe that the Department
could be compelled to pay the costs of a parent's vocational
training, even if the trial court believed that employment in a
particular calling would ameliorate the problems that resulted in
the Department's involvement in the case. Rather, the broad
language of section 2--10(2) must be read in conjunction with the
other statutes pertaining to the Department's powers and duties.
Unlike the majority, I do not discern in section 2--10(2) or in the
related statutes a legislative intent to make the Department
responsible for the costs of in-patient alcoholism and drug abuse
treatment programs.
Section 5(g) of the Children and Family Services Act provides:
"Rules and regulations established by the Department
shall include provisions for training Department staff
and the staff of Department grantees, through contracts
with other agencies or resources, in alcohol and drug
abuse screening techniques to identify children and
adults who should be referred to an alcohol and drug
abuse treatment program for professional evaluation." 20
ILCS 505/5(g) (West 1994).
In addition, section 34.4 of the Children and Family Services Act
authorizes the Department "[t]o enter into referral agreements, on
its own behalf and on behalf of agencies funded by the Department,
with licensed alcohol and drug abuse treatment programs for the
referral and treatment of clients with alcohol and drug abuse
problems." 20 ILCS 505/34.4 (West 1994).
Regarding the drug and alcohol problems of clients' family
members, section 34.5 of the Children and Family Services Act
directs the Department:
"To make such inquiry as may be appropriate, in any
intake or investigation which the Department is required
or authorized to conduct, to determine whether drug or
alcohol abuse is a factor contributing to the problem
necessitating the Department's involvement, and, when
appropriate, to refer a person to a licensed alcohol or
drug treatment program, and to include any treatment
recommendations in the person's case plan." 20 ILCS
505/34.5 (West 1994).
"Where appropriate, the case plan shall include recommendations
concerning alcohol or drug abuse evaluation." 20 ILCS 505/6a(a)
(West 1994).
The legislature has placed restrictions on the facilities to
which the Department of Children and Family Services may make
referrals for alcoholism and drug abuse treatment. Discussing the
Department's duty to make referrals, section 8.2 of the Abused and
Neglected Child Reporting Act provides, in pertinent part, "In any
case where there is evidence that the perpetrator of the abuse or
neglect is an addict or alcoholic as defined in the Alcoholism and
Other Drug Abuse and Dependency Act, the Department, when making
referrals for drug or alcohol abuse services, shall make such
referrals to facilities licensed by the Department of Alcoholism
and Substance Abuse or the Department of Public Health." 325 ILCS
5/8.2 (West 1994).
Noticeably absent from all of these provisions is any
indication that the Department may be required to pay the costs of
in-patient treatment for parents' alcoholism or drug abuse. The
preceding measures must be contrasted with the provisions of the
Alcoholism and Other Drug Abuse and Dependency Act, which sets
forth the powers and duties of the Department of Alcoholism and
Substance Abuse. In doing so, the Alcoholism and Other Drug Abuse
and Dependency Act clearly indicates the responsibility of the
Department of Alcoholism and Substance Abuse to establish and fund
treatment programs. The legislature has denominated that department
to be the exclusive state agency to accept, receive, and expend
funds for substance abuse services. 20 ILCS 301/5--10(a)(2) (West
1994). While the Department of Alcoholism and Substance Abuse is to
assist DCFS in identifying substance abuse problems among the
latter agency's clients and in developing programs and services for
those problems, none of the enumerated activities involve the
providing of in-patient treatment programs. 20 ILCS 301/5--
10(a)(4)(D), (a)(4)(E) (West 1994). Indeed, the majority's result
in this case undermines the role of the Department of Alcoholism
and Substance Abuse as the primary state agency charged with the
prevention and treatment of alcohol and drug problems among
residents of Illinois.
In sum, there is no clear expression of legislative intent
that the Department should be responsible for the costs ordered by
the trial judges in the cases consolidated here. Given the lack of
a clear expression of legislative intent on this important matter,
I would defer to the Department's own construction of its governing
statutes and conclude that the Department may not be ordered to pay
the costs of in-patient alcoholism and drug abuse treatment for
parents of minors who are within the Department's jurisdiction. No
one disputes the terrible toll that substance abuse problems can
take on minors and their families. I believe, however, that the
determination whether to pay the costs of providing in-patient
treatment for those conditions is committed to the legislature
rather than to the judiciary. In the absence of a directive from
the legislature, we should not add further financial obligations to
the Department's already lengthy list of duties and
responsibilities. Because I do not believe that the orders here
were authorized by statute, I do not address the separate question
whether the Department was required to have developed service plans
by the time the court hearings were held in these cases.
JUSTICES HEIPLE and McMORROW join in this dissent.
JUSTICE HEIPLE, also dissenting:
In seven unrelated temporary custody hearings, the trial court
ordered the Department of Children and Family Services (DCFS) to
provide and pay for in-patient drug treatment services for mothers
whose children were removed from their custody due to their
mothers' drug-related neglect of them. The majority today approves
this practice. In fact, the juvenile court's actions were premature
and an abuse of discretion. Accordingly, I dissent.
A temporary custody hearing must be held within 48 hours after
authorities, acting upon the reasonable belief that a minor has
been abused or neglected, have taken that minor into custody. See
705 ILCS 405/2--3 through 2--10 (West 1994). During that 48-hour
period, the DCFS's main focus is--and should be--the immediate
needs of the minor for protection, crisis treatment, and shelter
care. However, the majority finds that the DCFS should also have a
treatment plan, including in-patient drug treatment for the minors'
parents where necessary, "in development prior to the temporary
custody hearing." Slip op. at 9. Thus, in addition to securing the
well-being of the child taken into custody, finding that child
appropriate shelter, and preparing for the temporary custody
hearing itself within 48 hours, the majority holds that DCFS is
also required to conclude whether an in-patient drug treatment
program is appropriate for the parents in question, to investigate
what type of program would be beneficial, and to ascertain whether
such programs are available.
The majority finds support for the burden it places upon the
agency in section 2--10(2) of the Juvenile Court Act, which
cautions that, at the time of the temporary custody hearing, the
court shall require documentation as to the "reasonable efforts"
that were made to prevent or eliminate the necessity of removal of
the minor from his or her home. 705 ILCS 405/2--10(2) (West 1994).
In the lengthy context of section 2--10(2) of the Act, which
governs temporary custody hearings, I do not read a few isolated
references to "reasonable efforts" to mean that the DCFS has 48
hours to place a minor's parent with an in-patient drug treatment
program. As a practical matter, this 48-hour placement cannot be
met. I understand the Act to require only that a court cannot order
a child into temporary custody without a good-faith showing by DCFS
that the placement is necessary to the immediate well-being of the
child at the time of the hearing.
Moreover, the majority wholly ignores those provisions of the
Act which govern the DCFS's obligation to utilize its expertise in
determining what type of comprehensive service plan would best
serve the families before it. Section 2--10.1 of the Act provides
that once the child is temporarily removed, DCFS is required to
develop a case plan for the family within 45 days. 705 ILCS 405/2--
10.1 (West 1994). This case plan must utilize family preservation
services. 20 ILCS 505/6a (West 1994). Indeed, section 5--8.2 of the
Abused and Neglected Child Reporting Act states:
"The Department shall promptly notify children and
families of the Department's responsibility to offer and
provide family preservation services as identified in the
service plan. Such plans may include but are not limited
to: case management services; homemakers; counseling;
parent education; day care; emergency assistance and
advocacy assessments; respite care; in-home health care;
transportation to obtain any of the above services; and
medical assistance." 325 ILCS 5/8.2 (West 1994).
Thus, it is the responsibility of the DCFS to conduct an
investigation into the needs of the families during this 45-day
period following the minor's temporary removal and to decide what
types of services would be appropriate to facilitate reunification.
Given these provisions, this court should not countenance the
juvenile court's hasty fiat--without the benefit of any
professional evaluation or recommendation on the part of the agency
charged with reunification efforts--that the DCFS provide and pay
for in-patient drug counseling services for these mothers.
Finally, despite the majority's careful effort to cull
supportive policy language from lengthy and interrelated statutes
to buttress its analysis, I am not persuaded that the Juvenile
Court Act, along with the Abused and Neglected Child Reporting Act,
the Children and Family Services Act and the Illinois Alcoholism
and Other Drug Dependency Act combine to make it "clear" that drug
treatment for parents of neglected and abused children is among the
services the legislatures intended the DCFS to provide. Slip op. at
5. There are numerous statutory provisions in these Acts which
direct DCFS to identify and refer those children and/or adults with
drug or alcohol problems to other state agencies for evaluation and
treatment. See 325 ILCS 5/8.2 (West 1994) (stating that "[i]n any
case where there is evidence that the perpetrator of the abuse or
neglect is an addict or alcoholic *** the Department, when making
referrals for drug or alcohol abuse services, shall make such
referrals to [State licensed] facilities"); 20 ILCS 505/5(g) (West
1994) (providing that "[r]ules and regulations established by the
Department shall include provisions *** to identify children and
adults who should be referred to an alcohol and drug abuse
treatment program for professional evaluation"); 20 ILCS 505/6(a)
(West 1994) (stating that "[w]here appropriate, the case plan shall
include recommendations concerning alcohol or drug abuse
evaluation"); 20 ILCS 505/34.5 (West 1994) (directing the
Department, upon a determination that drug or alcohol abuse has
necessitated its involvement, "to refer a person to a licensed
alcohol or drug treatment program, and to include any treatment
recommendations in the person's case plan"). None of these
aforementioned provisions contemplate that DCFS itself is required
to provide direct drug treatment services to parents. By declaring
that the DCFS is now so required, the majority opinion renders
meaningless those statutory provisions directing the DCFS to refer
drug and alcohol abuse problems to other state agencies for
evaluation and treatment. See Niven v. Siqueira, 109 Ill. 2d 357,
367 (1985) (noting the presumption that the legislature did not
intend a meaningless act in enacting a statute).
The majority's decision places enormous financial and
logistical burdens on DCFS that cannot be justified by a
straightforward analysis of the statutes at issue and,
realistically, cannot be met. Accordingly, I respectfully dissent.