In re M.N.

2023 IL App (5th) 230052-U

• Court: Appellate Court of Illinois
• Decided: June 9, 2023
• Docket: 5-23-0052
• Status: Unpublished

Opinion

2023 IL App (5th) 230052-U NOTICE NOTICE Decision filed 06/09/23. The This order was filed under text of this decision may be NO. 5-23-0052 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Peti ion for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

In re M.N., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Champaign County. ) Petitioner-Appellee, ) ) v. ) No. 21-JA-68 ) Misty N.-J., ) Honorable ) Matthew D. Lee, Respondent-Appellant). ) Judge, presiding. ______________________________________________________________________________

JUSTICE McHANEY delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

ORDER

¶1 Held: Because DCFS was not a necessary party in this case, the trial court’s orders finding that the parents were unfit and that it was in M.N.’s best interest to terminate the parents’ rights were not void.

¶2 Misty N.-J. (Misty) appeals from the trial court’s orders finding that she was an unfit parent

and that it was in M.N.’s best interest to terminate her parental rights. She contends that the orders

were jurisdictionally void because the State did not add the Department of Children and Family

Services (DCFS) as a party to the case. Misty claims that DCFS needed to be added as a party

because she was a minor in foster care under the guardianship of DCFS when this case involving

M.N. was filed. For the following reasons, we affirm.

1 ¶3 I. Background

¶4 Misty does not challenge the findings of the trial court that she was unfit and that it was in

M.N.’s best interest to terminate her parental rights. Misty’s sole argument is that the failure to

join DCFS as a party rendered the trial court’s orders void. Therefore, we recite only those facts

relevant to that limited issue. M.N. is a male child born in 2021. Misty is his mother. Misty was

born in 2004. M.N.’s putative father is Antwan E. who is not a party to this appeal. The State filed

its petition for adjudication of the wardship of M.N. on September 20, 2021. As of that date, Misty

was 17 years old and was a ward of the court in Champaign County case No. 2017-JA-6. 1 The

petition alleged that M.N. was neglected while in Misty’s care because of his injurious

environment caused by exposure to the effects of her mental illness (count I) and to her substance

abuse (count II). On September 21, 2021, Misty was served with the notice of hearing via substitute

personal service upon Misty’s foster parent.

¶5 On September 22, 2021, the trial court held a temporary custody hearing. Misty did not

appear. At the conclusion of the hearing, the trial court found probable cause and an immediate

and urgent necessity to remove M.N. from Misty’s care. M.N. was placed in the temporary custody

of DCFS.

¶6 On December 2, 2021, the trial court held its adjudicatory hearing. Misty had court

appointed counsel, who was present and appeared at all subsequent hearings in this case. Misty

stipulated to the allegations of count I of the petition, and the court found that M.N. was abused or

neglected because he was in an environment that was injurious to his welfare.

1 On April 25, 2017, the circuit court entered a dispositional order finding Misty to be dependent, making her a ward of the court, and placing her custody and guardianship with DCFS. 2 ¶7 On January 7, 2022, the trial court held its dispositional hearing. Based upon the evidence,

the court found that Misty was unfit and unable to care for M.N., adjudged him neglected and

dependent, and placed M.N. in the custody and guardianship of DCFS.

¶8 The trial court held permanency review hearings on March 9, 2022, June 10, 2022, and

September 9, 2022. At the conclusion of each of these three hearings, the court found that Misty

had made neither reasonable efforts nor reasonable and substantial progress on her service plan

objectives.

¶9 On September 9, 2022, the State filed a motion to terminate Misty’s parental rights. The

State alleged that she had failed to make reasonable efforts to correct the conditions that caused

M.N.’s removal from her care, and that she had failed to make reasonable progress toward his

return. The State alleged that the relevant nine-month time period when Misty failed to make

reasonable progress toward M.N.’s return was December 8, 2021, to September 8, 2022.

¶ 10 On November 8, 2022, the trial court held the hearing on the State’s parental termination

motion. At the conclusion of the fitness hearing, the trial court found that the State had established

the allegations of its petition and found that Misty was an unfit parent.

¶ 11 The trial court held the best interest hearing on January 19, 2023; the trial court found that

it was in M.N.’s best interest to terminate Misty’s parental rights.

¶ 12 II. Analysis

¶ 13 Misty contends that the court’s orders finding that she was an unfit parent and terminating

her parental rights to M.N. were void because the proceedings were conducted in the absence of

her guardian, DCFS, who had not been added as a party. Specifically, Misty contends that pursuant

to section 1-5(1) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-5(1) (West 2020)), the

State was required to add DCFS as a necessary party. We disagree.

3 ¶ 14 “ ‘A necessary party is one whose participation is required to (1) protect its interest in the

subject matter of the controversy which would be materially affected by a judgment entered in its

absence; (2) reach a decision protecting the interests of the parties already before the court; or

(3) allow the court to completely resolve the controversy.’ ” Certain Underwriters at Lloyd’s

London v. Burlington Insurance Co., 2015 IL App (1st) 141408, ¶ 15 (quoting Zurich Insurance

Co. v. Baxter International, Inc., 275 Ill. App. 3d 30, 37 (1995), aff’d as modified, 173 Ill. 2d 235

(1996)). If a court lacked jurisdiction over a necessary party, any order entered will be void. Id. A

party may raise the issue of the failure to join a necessary party at any time. Id. (citing Lah v.

Chicago Title Land Trust Co., 379 Ill. App. 3d 933, 940 (2008)).

¶ 15 We turn to the statutory provisions of the Act to determine if DCFS was a necessary party

in this case. Without question, DCFS was appointed to be Misty’s guardian in her own case, 17-

JA-6. The question is whether DCFS had to be appointed as a party in this case, 21-JA-68. Our

analysis requires a review of multiple statutory sections of the Act.

¶ 16 The first rule of statutory construction requires courts to ascertain and give effect to the

legislature’s true intent. Jordan v. O’Fallon Township High School District No. 203 Board of

Education, 302 Ill. App. 3d 1070, 1079 (1999) (citing Solich v. George & Anna Portes Cancer

Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81 (1994)). All other rules of statutory

construction are subordinate to this one. To determine the legislature’s intent, we consider the

statutory language itself to be the best evidence, and we must afford that language its plain and

ordinary meaning. Id. (citing Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990)). If the court can

determine the legislature’s intent from the plain language of the statute, then the court should not

resort to other interpretative aids. Id. (citing People v. Fitzpatrick, 158 Ill. 2d 360, 364-65 (1994)).

“When construing the provisions of the Act, the court should read the Act as a whole, construing

4 words and phrases in light of the other relevant portions of the statute and not as isolated

provisions.” In re C.P., 2019 IL App (4th) 190420, ¶ 55 (citing In re C.P., 2018 IL App (4th)

180310, ¶ 18). Since statutory construction raises a question of law, our review is de novo. Solon

v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 439 (2010).

¶ 17 Section 2-22(1) of the Act provides that at a dispositional hearing the court must determine

if the best interest of the minor and the public requires that he or she be made a ward of the court.

705 ILCS 405/2-22(1) (West 2020). When the trial court declares that a minor is a ward of the

court, guardianship of the minor is then awarded to DCFS. Id. § 2-22(6).

¶ 18 In 17-JA-6, DCFS was appointed as Misty’s guardian on April 25, 2017. That guardianship

status was continued on February 22, 2023, by a permanency order in which the trial court found

that the appropriate goal was substitute care pending Misty’s independence. The next permanency

hearing in 17-JA-6 is set for August 2, 2023.

¶ 19 The term “guardianship of the person” is defined in section 1-3(8) of the Act as follows:

“the duty and authority to act in the best interests of the minor, subject to residual parental rights

and responsibilities, to make important decisions in matters having a permanent effect on the life

and development of the minor and to be concerned with his or her general welfare.” Id. 1-3(8).

The Act grants the guardian with the “authority *** to represent the minor in legal actions; and to

make other decisions of substantial legal significance concerning the minor.” Id. § 1-3(8)(a).

¶ 20 Section 1-5(1) of the Act provides:

“[T]he minor who is the subject of the proceeding and his or her parents, guardian, legal

custodian or responsible relative who are parties respondent have the right to be present, to

be heard, to present evidence material to the proceedings, to cross-examine witnesses, to

examine pertinent court files and records and also, although proceedings under this Act are

5 not intended to be adversary in character, the right to be represented by counsel.” Id. § 1-

5(1).

¶ 21 We also review the language of section 2-15 of the Act, which provides guidance about

who must be served in a case filed pursuant to the Act:

“(1) When a petition is filed, the clerk of the court shall issue a summons with a

copy of the petition attached. The summons shall be directed to the minor’s legal guardian

or custodian and to each person named as a respondent in the petition ***.

***

(5) Service of a summons and petition shall be made by: (a) leaving a copy thereof

with the person summoned ***; (b) leaving a copy at his usual place of abode with some

person of the family ***; or (c) leaving a copy thereof with the guardian or custodian of a

minor ***.” Id. § 2-15(1), (5).

¶ 22 Misty argues that DCFS was required to be a party in M.N.’s case as her legal guardian

and representative because she herself is a minor and remains a ward of the court. While our

legislature granted DCFS the authority to represent “the minor” in a case, there is nothing in the

statutory language (id. § 1-3(8)(a)) that makes this type of representation mandatory. We find that

the relevant question for this court is whether Misty is “the minor” referenced in these statutes in

the context of a case involving her minor child. The Illinois Appellate Court has addressed this

very issue, and determined that the term “the minor” is the individual who is the focus of the

petition. Applied to the facts of this case, M.N. is the minor who is the focus of this petition. See

In re C.P., 2018 IL App (4th) 180310; In re C.P., 2019 IL App (4th) 190420.

¶ 23 We find that the cases of In re C.P. (In re C.P., 2018 IL App (4th) 180310; In re C.P., 2019

IL App (4th) 190420) are dispositive. In In re C.P., the minor parent argued that the trial court

6 lacked jurisdiction to enter a dispositional order because she was also a minor, and the State failed

to serve her guardian in the case. In re C.P., 2019 IL App (4th) 190420, ¶ 53. The appellate court

noted that to resolve the issue necessitated statutory interpretation. Id. ¶ 55. In analyzing the issue,

the court turned to section 2-15 of the Act, which sets forth who must be served in neglect cases

and how they must be served. Id. ¶ 56. Within the context of this statutory section, the term “minor”

refers to the minor who is the subject of the neglect proceeding—not to the “minor” parent. Id.

¶¶ 57, 60 (citing In re C.P., 2018 IL App (4th) 180310, ¶ 25). The court concluded that although

C.P.’s mother was also a minor, “the minor” referred to in section 2-15 of the Act meant the minor

who was the subject of the proceeding—C.P. Id. The minor mother also argued that her mental

health issues, coupled with her adjudication as a ward of the court, compelled the State to serve

DCFS as a necessary party in its capacity as the minor mother’s guardian. Id. ¶ 62. The appellate

court found that this argument failed because section 1-5(1) of the Act does not state that a minor

parent’s guardian has “a right to be present at or participate in these proceedings.” Id. (citing 705

ILCS 405/1-5(1) (West 2016) and In re K.C., 323 Ill. App. 3d 839, 841-42 (2001)). The appellate

court readily distinguished In re K.C. where the adult parent had been adjudicated as disabled and

lacked the ability to care for herself and manage her own life. In re K.C., 323 Ill. App. 3d at 841.

In In re K.C., the court appointed a plenary guardian for the disabled adult parent whose child was

the subject of a juvenile petition. Id. at 841-42. In distinguishing the case, the court stated that

although the minor mother had mental health problems, anger problems, and had been diagnosed

with bipolar disorder, nothing in the record suggested that she was, or had been adjudicated as,

disabled. In re C.P., 2019 IL App (4th) 190420, ¶ 63.

¶ 24 We also find In re C.C., 2011 IL 111795, to be persuasive. In that case, our supreme court

analyzed the wording of section 1-5(1) of the Act and held that the plain language of the statute

7 establishes who can be a party respondent. Id. ¶ 33. These “party respondents” include the minor

who is the subject of the petition and “ ‘his parents, guardian, legal custodian or responsible

relative.’ ” (Emphasis omitted.) Id. (quoting 705 ILCS 405/1-5(1) (West 2010)). The supreme

court explained that “[w]hen a statute lists the things to which it refers, there is an inference that

all omissions should be understood as exclusions, despite the lack of any negative words of

limitation.” Id. ¶ 34 (citing People v. O’Connell, 227 Ill. 2d 31, 37 (2007)). At issue in In re C.C.

was whether a former guardian of C.C., the minor who was the subject of the petition, was a

necessary party in the case. Id. ¶ 34. The court found that the omission of former guardians from

the statutory list of necessary parties required to participate, or nonparties who are permitted to

participate, should be understood as a specific exclusion. Id.

¶ 25 Based upon the analysis in In re C.C., we find that the necessary parties in this case were

M.N., Misty, and M.N.’s father. 705 ILCS 405/1-5(1) (West 2020). In this case, M.N. is the minor

who is the “subject of the petition” and Misty is the “parent” and was correctly included in M.N.’s

case as his parent. Using the rules of statutory construction, the omission of Misty’s guardian from

the statutory list must be construed as a specific exclusion. In re C.C., 2011 IL 111795, ¶¶ 34-35.

“[S]ection 1-5 of the Act necessarily applies without regard to the specific facts of each individual

case.” Id. ¶ 41.

¶ 26 Applying this law to the facts of this case, we find that section 1-5(1) of the Act clearly

states that M.N., “the minor who is the subject of the proceeding,” and Misty as M.N.’s parent are

parties to the proceedings and “have the right to be present, to be heard, to present evidence

material to the proceedings, to cross-examine witnesses, to examine pertinent court files and

records and also *** the right to be represented by counsel.” 705 ILCS 405/1-5(1) (West 2020).

Misty’s guardian in her own juvenile case is not an intended party to M.N.’s juvenile case. We

8 construe the provisions of the Act in their entirety, “construing words and phrases in light of the

other relevant portions of the statute and not as isolated provisions.” In re C.P., 2019 IL App (4th)

190420, ¶ 55 (citing In re C.P., 2018 IL App (4th) 180310, ¶ 18). Although Misty contends that

DCFS has the authority to represent her in this case (705 ILCS 405/1-3(8)(a) (West 2020)), we

find that DCFS’s authority is directly connected to the minor who is the subject of the petition.

The subject of the petition in the case before us was M.N.—not Misty. Therefore, DCFS was not I a necessary party. Thus, the trial court’s orders were not void.

¶ 27 III. Conclusion

¶ 28 For the foregoing reasons, we conclude that because DCFS was not a necessary party, the

trial court’s orders finding that Misty was an unfit parent, and that M.N.’s best interest would be

served by terminating Misty’s parental rights, were not void.

¶ 29 Affirmed.