In re Maggie S.

2020 IL App (2d) 190413-U

• Court: Appellate Court of Illinois
• Decided: January 15, 2020
• Docket: 2-19-0413
• Status: Unpublished

Opinion

2020 IL App (2d) 190413-U Nos. 2-19-0413 & 2-19-0414 (cons.) Order filed January 15, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re Maggie S. & Curtis S., Minors. ) Appeal from the Circuit Court ) of De Kalb County. ) ) No. 18-JA-04 ) No. 18-JA-05 (The People of the State of ) Illinois, Petitioner-Appellee,v. ) Illinois Department of Children and Family ) Services and Janet Ahern, Guardianship ) Honorable Administrator, Respondents-Appellants). ) Ronald Matekaitis, ) Judge,Presiding. ____________________________________________________________________________

PRESIDING JUSTICE BIRKETT delivered the judgment of the court. Justices Zenoff and Burke concurred in the judgment.

ORDER

¶1 Held: The trial court properly granted the State’s motion to dismiss the neglect petitions when the reason that the children were found neglected, the father’s drug use, no longer applied after the father died of a drug overdose and the children’s mother had predeceased the father.

¶2 Appellants, the Illinois Department of Children and Family Services (DCFS), appeals from

an order of the trial court granting the State’s motion to dismiss two neglect petitions. For the

following reasons, we affirm.

¶3 I. BACKGROUND 2020 IL App (2d) 190413-U

¶4 The record reflects that on January 19, 2018, the State filed neglect petitions alleging that

three-year-old Maggie S. (Maggie) and two-month-old Curtis S. (Curtis) were neglected because

their environment was injurious to them in that: (1) on November 28, 2017, their father, Ethan S.

(Ethan) was found unresponsive in their house from heroin use; and (2) Ethan had ongoing

substance abuse problems. 705 ILCS 405/2-3(1)(b) (West 2018). The children’s mother had died

in October 2017. The trial court appointed DCFS as temporary guardian and Jeffrey Kramer as

the children’s attorney.

¶5 DCFS placed the children with their paternal grandparents, DeWitt and Elizabeth S, to act

as foster parents. On April 20, 2018, the court entered an adjudicatory order finding that Ethan

had stipulated to the children having been in an injurious environment as defined by the Juvenile

Court Act (Act). 705 ILCS 405/2-3(1)(h) (West 2018). The court also entered a dispositional

order finding that Ethan was unfit and unable to care for his children, but not that he was unwilling

to do so. The court made the children wards of the court, began permanency proceedings and

granted DCFS the discretion to eventually allow Ethan unsupervised visitation with the children.

It also ordered that Court Appointed Special Advocates (CASA) be the children’s guardian ad

litem (GAL).

¶6 DCFS filed a service plan with the court and permanency proceedings began. However,

on January 19, 2019, Ethan died of a drug overdose. Therefore, on January 24, 2019, DCFS

informed the court that it wanted to change the previous goal from return home within 12 months

to that of adoption. The State said that it had no objection to that change of goal. CASA also did

not object to the goal change, but it raised issues involving the children’s inheritance of their

parent’s home, which the children’s maternal grandmother had purchased for the family. CASA

also referred to a probate proceeding that had been brought after the children’s mother died. That

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probate case had been dismissed when the juvenile neglect proceedings were initiated. DCFS

commented that the children’s financial issues were outside of the scope of these proceedings.

¶7 The trial court said it would continue the proceedings for four to six weeks to meet its

permanency timeline obligations. DCFS indicated that it was not looking to change the children’s

placement and requested that CASA not be allowed to contact people not involved in this juvenile

proceeding in any search for an alternate placement. CASA said that did not wish for a change in

placement. The trial court entered an order continuing the permanency proceedings to February

2019.

¶8 On February 19, 2019, Dominica Martin and Kevin Foley, sister and brother-in-law of the

children’s deceased mother, filed a motion to consolidate. In their motion they noted that they had

also filed a motion to reinstate cases 17 P 131 and 17 P 132, the earlier probate cases that had been

dismissed. Since both biological parents were deceased, they alleged that the probate cases should

be consolidated with the children’s juvenile cases. On that day Martin and Foley also filed a

motion to intervene in the juvenile case. In that motion they alleged that a GAL had been appointed

in the prior probate cases, a thorough investigation was conducted, and the GAL had recommended

that Martin and Foley be granted guardianship of the children.

¶9 On March 12, 2019, DCFS filed a response in opposition to Martin and Foley’s motion to

consolidate. In its response DCFS noted that the children were wards of the court and that DCFS

had been appointed as their guardian in the juvenile proceedings. It also said that pursuant to

Illinois law, all juvenile proceedings are confidential and Martin and Foley were not parties to the

juvenile proceedings, therefore, the juvenile case could not be consolidated with the probate case.

¶ 10 On March 14, 2019, Martin and Foley filed a motion for leave to file a petition for adoption

in the juvenile proceedings. In the motion they alleged that it was in the children’s best interests

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for their maternal aunt and uncle to adopt them, and since they are legally related to the children,

they were eligible to file a petition for adoption.

¶ 11 That same day CASA filed a motion to dismiss the State’s neglect petition for Maggie and

Curtis. In the motion it argued that the petition no longer stated a cause of action because the

neglect allegations stemmed from Ethan’s actions and he was deceased, as was the children’s

mother. Therefore, it argued, the petition was null and void. CASA said that the minors remained

wards of the court and that jurisdiction was still proper in De Kalb County. It said that it was in

the children’s best interests that: (1) their care be decided in the probate court (17 P 131 and 17 P

132); (2) their relatives be allowed to file adoption petitions for the children; or (3) the State file

petitions for adjudication because the children were dependents pursuant to section 2-4(1)(a) of

the Act. 705 ILCS 405/2-4(1)(a) (West 2018). CASA noted that both the grandparents and the

children’s aunt and uncle could file adoption petitions pursuant to section 50/1(B) of the Adoption

Act. 750 ILCS 50/1(B) (West 2018).

¶ 12 On March 19, 2019, the children’s court-appointed attorney filed a response to CASA’s

motion to dismiss and noted that, pursuant to the Probate Act, the probate court lacked jurisdiction

to proceed on a petition to appoint a guardian for a minor when a court of competent jurisdiction

had already appointed a guardian. See 755 ILCS 5/11-5(b) (West 2018). He also argued that the

children were properly in the care of their grandparents, the current foster parents, and that Martin

and Foley did not “fall within the limitations of the Juvenile Court Act for intervenor status.” The

children were in a “pre-adoptive” relative foster home and appeared to be well settled there.

Counsel then said it would be appropriate if the juvenile court judge and the probate court judge

conferred to determine which proceeding should continue based upon the best interests of the

children. Counsel again raised the argument that the probate court could not appoint a guardian

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for the children when a guardian had already been appointed in another court. Finally, counsel

requested that the juvenile court judge deny Martin and Foley’s petition to intervene and to

“proceed with the appropriate administration of these proceedings.”

¶ 13 On March 26, 2019, DCFS filed a response to CASA’s motion to dismiss. DCFS argued

that CASA’s motion to dismiss filed pursuant to section 2-615 of the Code of Civil Procedure

(Code) (735 ILCS 5/2-615 (West 2018)) should be denied because that section of the Code related

to defects on the pleadings, and CASA failed to state any defects in the neglect petition in its

motion to dismiss. DCFS also alleged that CASA had shared its motion with individuals that were

not parties to this case in violation of the Act. Therefore, DCFS requested that CASA’s motion be

denied and that the court impose sanctions on CASA.

¶ 14 On April 5, 2019, the State announced its intention to withdraw the pending juvenile case

in the near future because both parents were deceased. The State suggested that the juvenile court

should allow the probate court to proceed with a petition for guardianship filed by Martin and

Foley.

¶ 15 On April 8, 2019, the grandparents filed a petition for adoption of the children. That

petition was scheduled for a case management conference on July 2, 2019, in front of the same

trial judge that presided over these juvenile proceedings.

¶ 16 On April 19, 2019, DCFS filed a motion to conclude the permanency planning hearing that

began on January 4, 2019. It the motion it alleged that: (1) the State’s Attorney did not have the

absolute right to dismiss the pending juvenile action; (2) the court must conduct permanency

hearings every six months to review and evaluate the dispositional order and it had not done so;

and (3) CASA’s motion to dismiss was improper. Therefore, DCFS asked that the court conclude

the permanency hearing, find that the appropriate permanency goal for the children was substitute

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care pending court determination of termination of parental rights, conduct a prove up and “best

interests” hearing, make a finding that the minors’ placement was necessary and appropriate to the

case plan and goal, and make a finding that DCFS had made reasonable efforts to facilitate the

achievement of the permanency goal.

¶ 17 On April 26, 2019, the court continued DCFS’ motion to conclude the permanency hearing

to May 10, 2019, over DCFS’ objection.

¶ 18 On May 3, 2019, CASA responded to DCFS’ motion to conclude the permanency hearing.

In its response CASA denied that the court had taken no further action to conclude the permanency

hearing. Instead, CASA said that the court wanted all interested parties to have an opportunity to

present motions and responsive pleadings before making a decision regarding the best interests of

the children. It admitted that the State did not have the absolute right to dismiss a neglect petition

but noted that the court may allow the State’s motion to dismiss if it served the best interests of

the children. CASA noted that DCFS’ motion presented no authority as to why the death of the

minors’ parents did not allow for the withdrawal of the juvenile case. CASA denied that the

appropriate goal was substitute care pending determination on termination of parental rights. Since

the children’s father died within 9 months following the adjudication hearing he did not have a full

opportunity to correct the conditions that led to the removal of the children. CASA alleged that a

finding of fitness may not be made on deceased parents.

¶ 19 The hearing scheduled for May 10, 2019, was continued to May 13, 2019. The court heard

the outstanding motions and objections, and after noting how incredibly sad the circumstances

were in this case, it made the following comments:

“There are two sets of individuals represented by counsel that have stepped forward

indicating they wish to provide a permanent home for these children. There are financial

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issues associated with what assets may remain that would be for the benefit of these

children. I think a probate court is well suited to address those issues on behalf of those

competing parties, if you will, as well as [to] look out for the best interests of the children.

While the State may not have the absolute right, the court can stand in a position of

granting the State’s request to dismiss the case, withdraw the petition and have the case

dismissed and that would be the order of the court.”

¶ 20 DCFS counsel then asked the court to reconsider its rulings, and the court said that a motion

for reconsideration had to be in writing. Counsel responded, “[o]kay, Judge. I need for you to

sign these before we can move forward.” The court replied, “[C]all the other case.”

¶ 21 On May 14, 2019, the State filed a motion to clarify the court’s order of May 13, 2019. A

hearing was held on that motion on May 17, 2019. At the hearing the court said:

“All right. Well, maybe I can help provide some clarity, then.

I thought the whole point was terminating the case to allow the probate court to

take over the matter so what you did instantaneously to the extent that the children were in

legal limbo lasted [that] for a matter of minutes. Nobody left the courtroom in terms of the

caregivers who were then appointed temporary guardians.

For clarification purposes the court would vacate DCFS’s guardianship in these

matters and terminate the wardship of the minors and close the case.”

¶ 22 Counsel for DCFS said that the problem was that the probate case did not give anyone the

right to consent to any type of “treatment or medical. The language was not used.” Counsel asked

that the cause be continued, that the State put their motion to withdraw in writing, and that the

Attorney General clarify its order in the probate case and that the parties go back into juvenile

court when all that was done.

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¶ 23 The court denied DCFS’ motion to complete the permanency hearing and dismissed the

case. No specific ruling was made on Martin and Foley’s motions.

¶ 24 The court replied:

“The Attorney General can file whatever motions they [sic] feel are appropriate,

and if that includes seeking clarification with respect to medical treatment on behalf of the

minors, the probate court will take that up, but this case is now closed. DCFS’ guardianship

has ended and wardship of the minors is vacated as well. That’s the last of this case unless

and until if ever the Appellate Court says otherwise.”

The court said that guardianship included custody as well. DCFS timely filed a notice of appeal.

¶ 25 II. ANALYSIS

¶ 26 Before we address the merits of this case we must dispose of some procedural matters. In

its opening brief, DCFS did not designate these appeals as ones involving matters subject to an

expedited disposition pursuant to Illinois Supreme Court Rule 311(a) (eff. July 1, 2018). After

DCFS filed its brief, the State filed a memorandum in lieu of brief, as well as a motion for summary

remand a requesting that this court summarily remand this cause back to the trial court and have

the trial court transfer the neglect case to the trial court judge that was hearing the probate matters.

DCFS filed a response to the State’s motion for summary remand. In its response, DCFS argued

that the issues in these appeals did not trigger the accelerated schedule set forth in Rule 311.

Specifically, it argued that the trial court’s dismissal order involved no change of custody for the

minor children since they had been previously placed with their paternal grandparents and they

currently remained in their custody. Instead, it claimed, this case only involves the legal question

of whether the trial court erred in dismissing the neglect petition. The State then filed a motion to

strike. Among other arguments in the motion, the State contended that this case should be

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accelerated pursuant to Rule 311 because by discharging the only legal guardian and custodian the

minors had, DCFS, the trial court’s order clearly involved a matter of child guardianship/custody

and therefore, Rule 311 applied.

¶ 27 We agree with the State that this case is, indeed, a case involving child custody, and any

argument to the contrary is frivolous. Therefore, it should be considered an accelerated case

pursuant to Rule 311. We need not address any remaining arguments presented by the State in its

motion for summary remand. For that reason, the State’s motion to strike is denied as moot.

¶ 28 Pursuant to Rule 311(a) (eff. July 1, 2018), the appellate court must issue its decision within

150 days of the filing of the notice of appeal, except for good cause shown. Here, DCFS filed its

original notice of appeal on May 13, 2019. However, the State did not file its memorandum in

lieu of brief and designate this case as expedited under Rule 311 until October 1, 2019, which was

141 days after the notice of appeal was filed. Given that DCFS’ reply brief, the State’s motion to

strike and DCFS’ response to that motion were all filed after the 150 days had run, we find that

good cause exists here to file this case outside the time frame allowed in Rule 311.

¶ 29 We now turn to the merits of DCFS’ appeal.

¶ 30 DCFS argues that in dismissing the neglect petition after adjudicating the children as

neglected minors, the trial court failed to comply with the requirements of the Act and its discharge

order was therefore ineffectual. Specifically, it argues that the trial court erred in failing to

conclude the permanency hearing and to: (1) consider the factors mandated in section 2-28(2) of

the Act (705 ILCS 405/2-28(2) (West 2018); (2) provide written factual findings pursuant to

section 2-31(2) of the Act (705 ILCS 405/2-31(2) (West 2018)) and (3) take into account the

factors mandated in section 1-3(4.05) of the Act (705 ILCS 405/1-3(4.05) (West 2018)). DCFS

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also raises several other miscellaneous issues. We will address each claim individually, but first

we will address the standard of review.

¶ 31 A. Standard of Review

¶ 32 Generally, when the issue on appeal involves how the trial court weighed the facts in a

termination of wardship case the manifest-weight-of-the-evidence standard of review is employed.

In re Bettie Jo R., 277 Ill. App. 3d 401, 405 (1995). However, whether a trial court failed to follow

the requirements of a statute presents a question of law, we will review the case on a de novo basis.

In re Vincente G., 408 Ill. App. 3d 678, 682 (2011). In this case, we are being asked to determine

whether the trial court erred as a matter of law when it allegedly failed to follow specific

requirements of the Act. Therefore, we agree with DCFS that the proper standard of review in this

appeal is de novo.

¶ 33 B. Section 2-28(2) of the Act

¶ 34 DCFS argues that in order to comply with section 2-28(2) of the Act, the trial court must

determine the future status of the child at a permanency hearing and select one of eight enumerated

permanency goals. 705 ILCS 405/2-28(2) (West 2018). It notes that it specifically requested that

the trial court change the goal from return home to adoption, but that the trial court did not do so.

Instead, the trial court adopted the State’s rationale that the neglect petition should be dismissed

because it believed there were two viable sets of potential adoptive parents for the children.

¶ 35 The version of section 2-28(2) of the Act that was effective at the time of the hearings

below provided that at the permanency hearing, the court shall determine the future status of the

child by setting one of the following permanency goals:

“(A) The minor will be returned home by a specific date within 5 months.

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(B) The minor will be in short-term care with a continued goal to return home

within a period not to exceed one year, where the progress of the parent or parents is

substantial giving particular consideration to the age and individual needs of the minor.

(B-1) The minor will be in short-term care with a continued goal to return home

pending a status hearing. When the court finds that a parent has not made reasonable efforts

or reasonable progress to date, the court shall identify what actions the parent and the

Department must take in order to justify a finding of reasonable efforts or reasonable

progress and shall set a status hearing to be held not earlier than 9 months from the date of

adjudication nor later than 11 months from the date of adjudication during which the

parent's progress will again be reviewed.

(C) The minor will be in substitute care pending court determination on termination

of parental rights.

(D) Adoption, provided that parental rights have been terminated or relinquished.

(E) The guardianship of the minor will be transferred to an individual or couple on

a permanent basis provided that goals (A) through (D) have been ruled out.

(F) The minor over age 15 will be in substitute care pending independence. In

selecting this permanency goal, the Department of Children and Family Services may

provide services to enable reunification and to strengthen the minor's connections with

family, fictive kin, and other responsible adults, provided the services are in the minor's

best interest. The services shall be documented in the service plan.

(G) The minor will be in substitute care because he or she cannot be provided for

in a home environment due to developmental disabilities or mental illness or because he or

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she is a danger to self or others, provided that goals (A) through (D) have been ruled out.”

705 ILCS 405/2-28(2) (West 2018).

¶ 36 We find DCFS’ argument to be without merit. None of the factors listed in section 2-28(2)

of the Act apply to the instant case. The first three factors do not apply because a return home

goal is not feasible since the children’s parents are both deceased. The fourth factor, substitute

care pending a determination on termination of parental rights, would be illogical if applied to this

case. DCFS can point to no authority that provides for the termination of an individual’s parental

rights after they have died. The reason it cannot do so is that such a procedure would be a total

waste of judicial time and resources. The next factor, “(D) Adoption, provided that parental rights

have been terminated or relinquished.” Here, the children’s parental rights were not terminated,

nor did the parents relinquish them, so this factor does not apply.

¶ 37 Factor “(E) The guardianship of the minor will be transferred to an individual or a couple

on a permanent basis provided that goals (A) through (D) have been ruled out,” presents us with

our first problem. Technically, the trial court could have applied factor E here and transferred

guardianship of the children to the grandparents on a permanent basis. However, doing so would

have turned a blind eye to the fact that there were another set of relatives who wanted to adopt the

children, their aunt and uncle, and those relatives could not intervene or otherwise be heard in the

neglect proceedings. The Act provides that “[t]he court may grant standing to any foster parent if

the court finds that it is in the best interest of the child for the foster parent to have standing and

intervenor status.” 705 ILCS 405/1-5(2)(d) (West 2018). Here, the grandparents were selected by

DCFS to be the foster parents, so the aunt and uncle had no way to access these proceeding and

voice their desire to adopt the children.

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¶ 38 We agree with DCFS that the last two factors, F and G, are not applicable to this case. For

all these reasons, we find that the trial court did not err by not choosing a permanency goal when

none of the statutory factors applied to the facts of this case.

¶ 39 C. Sections 2-31(2)

¶ 40 DCFS next claims that the trial court erred in failing to make any written findings as to

why it was in the children’s best interests to grant the State’s motion to withdraw the neglect

petitions as required by section 2-31(2) of the Act. 705 ILCS 405/2-31(2) (West 2018).

¶ 41 Section 2-31(2) of the Act provides that when the court determines, and makes written

factual findings, that the health, safety, and the best interests of the minor and the public no longer

require the wardship of the court, the court shall order the wardship terminated and all proceedings

under the Act respecting the minor shall be finally closed and discharged. It also provides that the

trial court may at the same time continue or terminate any custodianship or guardianship

theretofore ordered but the termination must be made in compliance with Section 2-28. 705 ILCS

405/2-31(2) (West 2018).

¶ 42 As for section 2-31(2)’s requirement that the trial court make written findings that the

health, safety and best interests of the children no longer require that they be wards of the court

(705 ILCS 405/2-31(2) (West 2018)), we agree with DCFS that such written findings were not

made. However, DCFS has forfeited this claim because it failed to object to the lack of written

findings in the court’s order in the proceedings below. See In re K.S., 317 Ill. App. 3d 830, 833

(2000). Also, even if we ignored DCFS’ forfeiture here, we find that the court’s oral ruling was

sufficient to put DCFS on notice of the court’s decision. See In re Madison H., 215 Ill. 2d 364,

377 (2005) (an oral finding on the record, once transcribed, may satisfy the writing requirement of

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section 2-27(1) of the Act “provided that it is explicit and advises the parties of the basis for the

court’s decision.”)

¶ 43 Here, we know why the trial court believed that it was in the children’s best interests to

grant the State’s motion to withdraw the neglect petition because its findings are contained in the

report of proceedings. Specifically, after commenting about how sad the circumstances here were

with the children’s parents being deceased, the trial court said:

“There are two sets of individuals represented by counsel that have stepped forward

indicating they wish to provide a permanent home for these children. There are financial

issues associated with what assets may remain that would be for the benefit of these

children. I think a probate court is well suited to address those issues on behalf of those

competing parties. If you will, as well as [to] look out for the best interests of the children.”

¶ 44 Here, the trial court wanted both the children’s paternal grandparents and their maternal

aunt and uncle to be “vetted” to see which couple would make the best adoptive parents. At the

same time, there were financial issues that needed to be worked out with the parents’ estates. As

we have noted, the maternal aunt and uncle could not intervene in the juvenile proceeding.

Therefore, the trial court properly chose to grant the State’s motion to dismiss the neglect petitions

and have the issue of adoption and finances determined by one judge, the probate judge. That

determination was in accordance with Supreme Court Rule 903 (eff. March 8, 2016), which

“encourages the assignment of all custody and allocation of parental responsibilities proceedings

concerning a child to a single judge.”

¶ 45 D. Section 1-3(4.05) of the Act

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¶ 46 Next, DCFS claims that the trial court erred in failing to consider the factors in section 1-

3(4.05) of the Act when it found that it was in the children’s best interests to grant the State’s

motion to dismiss the neglect petition.

¶ 47 Section 1-3(4.05) of the Act provides that whenever a best interests determination is

required, the following factors shall be considered based upon child’s age and developmental

needs:

(i) where the child actually feels love, attachment, and a sense of being valued (as

opposed to where adults believe the child should feel such love, attachment, and a sense of

being valued);

(ii) the child's sense of security;

(iii) the child's sense of familiarity;

(iv) continuity of affection for the child;

(v) the least disruptive placement alternative for the child;

(e) the child's wishes and long-term goals;

(f) the child's community ties, including church, school, and friends;

(g) the child's need for permanence which includes the child's need for stability and

continuity of relationships with parent figures and with siblings and other relatives;

(h) the uniqueness of every family and child;

(i) the risks attendant to entering and being in substitute care; and

(j) the preferences of the persons available to care for the child.”

705 ILCS 405/1-3(4.05) (West 2018).

¶ 48 We are not persuaded by DCFS’ argument. Although it does not explicitly say so, implied

in DCFS’ argument is that these factors weighed in favor of the paternal grandparents because they

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had been the children’s foster parents since 2018. However, once again, that turns a blind eye

toward the fact that there is another couple, also relatives of the children, who also want to adopt

the children. Without giving the maternal aunt and uncle a right to visit with the children and

establish a more permanent relationship with them we cannot say which factors favors which

couple. Again, we note that the maternal aunt and uncle were not legally able to intervene in the

juvenile proceedings. For these reasons, we find no error.

¶ 49 E. Miscellaneous Issues

¶ 50 In its brief DCFS raises several smaller issues by way of a few sentences or a paragraph,

and then moves on to another issue. We will address these issues as well.

¶ 51 1. The Children’s Medical Treatment

¶ 52 DCFS claims that the trial court erred in terminating its guardianship over the children

because doing so meant terminating services to the family, and that left the children with no one

who had authority to consent to their medical treatment.

¶ 53 First, this claim assumes that the probate judge, who within minutes after the juvenile court

judge granted the State’s motion to dismiss, did not appoint a guardian for the children and give

that guardian the power to make medical decisions for them. Second, the juvenile court judge

responded to DCFS’ concern about the children’s medical treatment below and noted that the

Attorney General could request that the guardianship order be made more explicit regarding

medical treatment. Finally, and most important, we have no jurisdiction to determine the

correctness of the probate judge’s actions below. Accordingly, this claim is without merit.

¶ 54 2. Section 1-5 of the Act

¶ 55 Next, DCFS argues that the outcome of this case was inconsistent with section 1-5 of the

Act, which provides the minor, parents, guardian, legal custodian and other parties with the right

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to be present and to be heard, submit evidence, and cross-examine witnesses during proceedings

under the Act. 705 ILCS 405/1-5 (West 2018).

¶ 56 DCFS does not allege how the trial court violated this section of the Act or cite to the pages

of the record as support for this contention. Therefore, this claim violates Illinois Supreme Court

Rule 341(h)(7) (eff. March 25, 2018) (the argument section of appellant’s brief shall contain the

contentions of the appellant and the reasons therefor, with citation of the authorities and the pages

of the record relied on). Accordingly, this issue has been forfeited. See CE Design, Ltd. V.

Speedway Crane, LLC, 2015 IL App (1st) 132572, ¶ 18 (“[t]he failure to provide an argument and

to cite to facts and authority, in violation of Rule 341, results in the party forfeiting consideration

of the issue.”).

¶ 57 3. In re Vincente G.

¶ 58 Next, DCFS contends that the act of dismissing the neglect petition rather than concluding

the permanency hearing was a de facto “return home,” which was inappropriate where there was

no home to which the children could be returned. As support for this claim it cites to In re Vincente

G., 408 Ill. App. 3d 678 (2011).

¶ 59 In In re Vincente G., the parents were adjudicated unfit, but before the conclusion of the

permanency proceedings, the mother disappeared with the children. The court issued child

protection warrants, the mother was held in indirect civil contempt of court and a bench warrant

was issued for her arrest. Id. at 680. Three years later the children had not been found and DCFS

moved to terminate the guardianship of the minors. The trial court granted the motion. The

appellate court reversed. It found that at the time the trial court granted DCFS’ motion, the mother

had violated the court’s orders relating to visitation and had taken physical custody of the children,

which placed them in the same neglectful situation they had been in the beginning of the

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proceedings. It also found that the closing of the case deprived the children of the protective orders

that had been entered. Id. at 683. The appellate court also found that rather than consider the

children’s best interests, the court focused on the practicalities of keeping the case open in the

absence of the mother and the children. Id. In doing so, the trial court violated section 2-31(2) of

the Act. The termination of warship and guardianship resulted in “the de facto return of the

minors’ custody to [the mother]” and it did not hold a hearing, order an investigation or make the

necessary finding that the mother was fit to care for the minors pursuant to section 2-28(4) of the

Act. Id. at 684.

¶ 60 DCFS argues that like in Vincente G., the trial court here was more concerned with the

practicalities outside the reach of the Act, such as whether the children might inherit property from

their parents.

¶ 61 We fail to see how In re Vincente G. aids DCFS’ case. First, the Vincente G. court did not

say that the terminating the proceedings was a de facto “return home,” as DCFS alleges. It said

that it would be a de facto return of the children to the mother’s custody. Here, that outcome could

not happen because both parents are deceased. Second, after their mother kidnapped them, the

children in Vincente G. were in the same neglectful environment as in the beginning of those

proceedings. In the instant case, however, the children were found to be neglected because of their

father’s drug use. That neglect ceased to exist after he died. Finally, unlike in Vincente G., the

trial court here made findings as to why it was in the children’s best interests to grant the State’s

motion. We disagree that those findings were only about “practicalities outside the reach of the

Act” as DCFS alleges. Those “practicalities” were in conformance with Supreme Court Rule 903

(eff. March 8, 2016) and they served the children’s best interests because it gave the probate court

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two separate groups of relatives to investigate and determine which ones were the best fit as the

children’s adoptive parents.

¶ 62 4. CASA’s Motion to Dismiss

¶ 63 DCFS next contends that CASA’s motion to dismiss was improper because it was brought

under section 2-615 of the Code. 735 ILCS 5/2-615 (West 2018). Having found that the trial court

properly granted the State’s motion to dismiss the neglect petition we need not address this issue.

¶ 64 5. State’s Discretion to Withdraw Petition

¶ 65 Finally, DCFS argues that the State lacked the unilateral discretion to withdraw the neglect

petition. It acknowledges that the trial court appeared to accept the fact that the State lacked the

absolute right to withdraw the petition, but that it erred anyway when it said that it could stand in

the shoes of the State and withdraw the case. DCFS claims that this is another example of the trial

court not making its decision based upon the best interest of the children.

¶ 66 We are not persuaded. For all the reasons previously noted, the trial court properly

considered the best interests of the children when it granted the State’s motion to dismiss the

neglect petition.

¶ 67 III. CONCLUSION

¶ 68 In sum, the trial court properly granted the State’s motion to dismiss the neglect

proceedings here when the children’s parents were both deceased and the trial court found that it

was in the children’s best interests for the probate court to determine whether the maternal aunt

and uncle or the paternal grandparents were best suited to be the children’s adoptive parents.

¶ 69 For the following reasons, the judgment of the circuit court of De Kalb County is affirmed.

¶ 70 Affirmed.

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