In re R.M.

SECOND DIVISION

May 27, 1997

No. 1-96-0518

In re R.M., a Minor ) Appeal from the

(The People of the State of Illinois, ) Circuit Court of

Appellee, ) Cook County.

v. )

)

Tara Smith, )

)

Intervenor-Appellant )

)

(The Department of Children and Family ) Honorable

Services, ) Sebastian Patti,

Appellant)). ) Judge Presiding.

JUSTICE McNULTY delivered the opinion of the court:

Intervenor Tara Smith and the Illinois Department of Children

and Family Services (DCFS) appeal from a juvenile court order

granting the guardian ad litem's (GAL's) motion that the minor

child, R.M., be removed from Smith's foster care and placed with

foster parents Kent and Pamela Lawton. Both Smith and DCFS claim on

appeal that the juvenile court acted outside its statutory

authority when it entered an order removing R.M. from Smith's home

and requiring that R.M. be placed with a specific foster parent.

Smith and DCFS also claim that the court's decision was in error

since the GAL failed to exhaust the administrative remedies on

behalf of R.M. prior to seeking judicial review of the foster care

placement decision that had been made by DCFS. In addition, Smith

asserts that she was deprived of her right to notice and an

opportunity to be heard when the juvenile court ruled on the GAL's

motion to remove R.M. from her home. We vacate the trial court

order removing R.M. from Smith's home and placing her in the care

of the Lawtons.

On August 25, 1993, the State's Attorney filed a petition for

adjudication of wardship in the juvenile court on behalf on R.M.,

alleging that, due to her parent's neglect, R.M. suffered from

nonorganic failure to thrive. R.M. was born on September 28, 1990,

and she has received regular treatment since infancy for nonorganic

failure to thrive, which is malnutrition caused by multisystematic

problems, including the child's environment and family

interactions.

The juvenile court appointed the guardian administrator for

DCFS as temporary guardian and custodian of R.M. and Patrick

Murphy, the Cook County public guardian, as guardian ad litem.

DCFS placed R.M. with her maternal grandmother. On November 15,

1993, the juvenile court entered an adjudication order finding R.M

abused and neglected. DCFS removed R.M. from her grandmother's

home in November 1993 and, in December 1993, placed her in the home

of Tara Smith. On February 7, 1994, the juvenile court entered an

order adjudicating R.M. to be a ward of the court and awarding the

guardian administrator for DCFS the right to place the child. R.M.

remained in Smith's custody.

In February 1995, R.M. was hospitalized for nonorganic failure

to thrive. She had been hospitalized once before, while living

with her parents, for nonorganic failure to thrive, and she gained

weight while hospitalized. When R.M. was hospitalized the second

time for two weeks, she gained six ounces. In the four months

prior to her hospitalization, while in Smith's care, R.M gained

three ounces. When R.M. was released from the hospital she

returned to Smith's care.

LaRabida Hospital has of policy of reporting to DCFS cases

where a child gains weight in the hospital, since this is evidence

of nonorganic failure to thrive. Therefore, someone on the

hospital staff called in a report to the DCFS hotline regarding

R.M. The DCFS Division of Child Protection (DCP) investigated the

hotline report and in early April 1995, R.M. was removed from

Smith s care by the Lutheran Social Services of Illinois (LSSI),

the private agency handling R.M. s case, and placed her in the home

of Pamela and Kent Lawton.

On April 6, 1995, Smith filed a service appeal challenging

R.M. s removal from her home and seeking an emergency review of the

basis for the removal. On May 22, 1995, an independent hearing

officer from DCFS conducted an emergency review to consider Smith s

request for the immediate return of R.M. As a result of this

hearing, the DCFS hearing officer issued an interim decision on

June 1, 1995, finding that there was no risk of imminent harm to

R.M. if she were to return to Smith s home. On June 12, 1995, DCFS

returned R.M. to Smith s home. DCFS conducted an optional

mediation as part of the service appeal process on June 15, 1995.

The placement issue was not resolved in this mediation session.

On June 19, 1995, R.M. s court-appointed GAL filed with the

court an "Emergency Motion to Change Placement," claiming that it

was not in R.M. s best interest to be placed in Smith s home. No

party at the hearing on this motion apprised the juvenile court of

Smith s pending service appeal. Three witnesses testified at the

hearing, Madeline Shalowitz, Ida Mabry, and Ezillia Bell. Madeline

Shalowitz, who is in charge of the Failure to Thrive Clinic at

LaRabida Hospital, testified that she has been responsible for

R.M.'s pediatric care for over two years. Dr. Shalowitz testified

that the clinic required Smith to bring R.M. to the hospital at

least once a month. However, Smith failed to bring R.M. to the

hospital for four months and R.M. gained little weight during that

time. Dr. Shalowitz testified that R.M. gained weight when she was

hospitalized and was returned to Smith s home under a 60-day

contract, which described specifically what R.M. should eat and how

much weight she was expected to gain. Dr. Shalowitz testified that

within two weeks after being discharged from the hospital, R.M.

lost the weight she had gained while in the hospital. During the

two months R.M. was in the Lawtons' home, however, she gained

weight and looked healthier. Dr. Shalowitz recommended that R.M.

stay with the Lawtons. According to Dr. Shalowitz, Smith's home is

not appropriate for R.M. since Smith failed to follow the clinic's

instructions for caring for R.M. Dr. Shalowitz testified that

keeping R.M. out of Smith's home is an emergency matter.

Ida Mabry, a nurse at LaRabida Hospital, testified that she

conducted a home visit to Smith's home in March 1995, to see R.M.

and deliver the 60-day contract to Smith. At 3:30 or 4 p.m., R.M.

was eating hot dogs and potato chips, but Smith was not at the

table with R.M., as the clinic had recommended. Smith told Mabry

that she leaves Pediasure, an enriched caloric drink recommended by

the hospital, out so that R.M. can get it whenever she wants.

Mabry testified that she explained to Smith that in order to get

R.M. to drink Pediasure, Smith must sit down with R.M. and

encourage her to do so. Mabry gave Smith and the Lawtons' the same

instructions on feeding techniques that should be used to encourage

R.M. to eat. Mabry visited the Lawtons and was pleased to see that

R.M. looked healthy and had put on weight. Mabry found Smith's

home to be an inappropriate placement for R.M. and recommended that

she stay with the Lawtons rather than Smith.

Ezillia Bell, the program director at LSSI, testified that she

believed that R.M. should remain with Smith because R.M. has been

well cared for while in Smith's home. Bell testified that R.M. did

not gain weight while at Smith's home because Smith was not given

adequate instructions on how to care for R.M.

At the conclusion of the hearing, the trial court found that

it was not in R.M.'s best interest to remain in Smith's home. The

court's decision was based on the fact that R.M. failed to thrive

in Smith's home, but did gain weight while in the hospital and

while in the Lawtons' home. The court ordered that R.M. be removed

from Smith's home and placed in the Lawtons' home.

On July 18, 1995, Smith filed a motion to intervene and a

motion to reconsider. On October 23, 1995, the juvenile court

judge granted Smith s motion to intervene. On November 29, 1995,

Smith filed a motion to vacate the order removing R.M. from her

home and placing her with the Lawtons. Smith presented to the

court the affidavit of Dr. Aleta Clark, who determined that R.M.

had gained sufficient weight while in Smith s care. The trial

court denied Smith s motion to reconsider. The court found that

Smith did not have standing or intervenor status for the purposes

of the court's emergency hearing, and that the decision to remove

R.M. from Smith's home was proper in order to prevent R.M. from

imminent harm.

Smith and DFCS filed separate appeals. Both Smith and DCFS

claim that the juvenile court acted outside its statutory authority

when it entered the order requiring that R.M. be removed from

Smith's home and placed with a specific foster home, the Lawtons.

On April 3, 1996, either DCFS or LSSI removed R.M. from the

Lawtons' home and placed her in the home of other nonrelative

foster parents, the Jeters. In light of this development, the GAL

claims that DCFS's and Smith's challenge to the trial court's

authority to place R.M. with a specific foster home, the Lawtons,

is moot. An issue on appeal becomes moot when events occur after

the filing of the appeal that make it impossible for the appellate

court to grant the complaining party effectual relief. Mount

Carmel High School v. Illinois High School Ass'n, 279 Ill. App. 3d

122, 664 N.E.2d 252 (1996); In re A Minor, 127 Ill. 2d 247, 537

N.E.2d 292 (1989).

However, a case that normally would be considered moot may

qualify for review if it involves a question of great public

interest. In re A Minor, 127 Ill. 2d 247, 537 N.E.2d 292 (1989).

The criteria for the public interest exception are: (1) the public

nature of the question; (2) the desirability of an authoritative

determination for the purpose of guiding public officers; and (3)

the likelihood that the question will generally recur. Minor, 127

Ill. 2d at 257. We find the public interest exception

applicable here since the issue of whether the juvenile court may

order that a child be removed from one foster home and placed in

another is an issue of public concern. Furthermore, it is

desirable that juvenile court judges receive guidance as to the

circumstances under which they may make specific placement

decisions. It is also likely that this issue will recur. We

therefore address the issue of whether the juvenile court had

authority to order that R.M. be placed with a specific parent as

well as whether the court had authority to order that R.M. be

removed from Smith's home.

The GAL concedes that the juvenile court did not have the

authority to order R.M.'s specific placement with the Lawton's.

The juvenile court's authority is defined and limited by the

Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 (West 1994)).

In re M.M., 156 Ill. 2d 53, 619 N.E.2d 702 (1993). The juvenile

court is authorized under the Act to enter an order requiring a

guardian or custodian to place a child in a specific foster home in

only one circumstance; when an application to restore a minor to a

parent, guardian or legal custodian has been filed, then foster

parents may intervene in the proceeding for the sole purpose of

requesting that the minor be placed in their care. 705 ILCS 405/1-

5(2)(b)(West 1994). That section of the Act further clarifies:

"The juvenile court may only enter orders placing a minor

with a specific foster parent under this [Section] and

nothing in this Section shall be construed to confer any

jurisdiction or authority on the juvenile court to issue any

other orders requiring the appointed guardian or custodian

of a minor to place the minor in a designated foster home or

facility." 705 ILCS 405/1-5(2)(b)(West 1994).

This section is clearly not applicable here.

In all other instances, once the court chooses to place a

child with DCFS, the Act does not permit the court to then order

DCFS to place the child in any specific setting. 705 ILCS 405/2-

23(3), and 2-28(2)(West 1994); In re M.V., Nos. 1-96-3289 & 1-96-

3324 (May 2, 1997) (the court has authority only under section 1-

5-(2)(6) to order a specific placement); In re T.L.C., 285 Ill.

App. 3d 922 (1996)(court concluded that when guardianship is

placed with DCFS, there is no statutory authority permitting the

court to dictate to DCFS exactly where custody must be placed); In

re Chiara C., 279 Ill. App. 3d 761, 665 N.E.2d 404 (1996)(the

court found that the circuit court orders requiring DCFS to place

minor in specific residential and educational services are in

violation of the Juvenile Court Act).

We now turn to the issue of whether the juvenile court had

authority to grant the GAL's emergency motion to change R.M.'s

placement and order R.M. s immediate removal from Smith s home.

DCFS has established an administrative review and appeals process

for children and families who request or receive child welfare

services from DFCS. 20 ILCS 505/5(o)(1994). Foster parents and

children receiving services may appeal decisions regarding

placement of a minor pursuant to section 5(o) of the Children and

Family Services Act (20 ILCS 505/5(o) (West 1994)). 89 Ill. Adm.

Code 337.60 (1994). Section 5(o) provides that "[a]n appeal of

a decision concerning a change in the placement of a child shall

be conducted in an expedited manner." 20 ILCS 505/5(o)(West

1994).

The service appeal process consists of an emergency review,

optional mediation, a fair hearing, and a final administrative

decision. 89 Ill. Adm. Code, 337.30 (1994). An emergency review

allows for an interim decision pending a fair hearing, and such

emergency decisions are made within 10 days of the date that

emergency review was requested. 89 Ill. Adm. Code

337.30(b)(1994). Mediation is offered within 30 days of the date

the service appeal was filed. 89 Ill. Adm. Code 337.30 (1994).

If the dispute is not resolved in mediation, then an

administrative law judge conducts a fair hearing where all parties

may present evidence supporting their positions. 89 Ill. Adm.

Code 337.30(c)(1994). Following the hearing, the administrative

law judge makes a recommendation to the Director of DCFS. The

burden of proof is on DCFS to show that the decision was made in

the best interest of the child. The Director of DCFS issues the

final administrative decision. 89 Ill. Adm. Code 337.20 (1994).

Any party to the service appeal proceeding may seek judicial

review of DCFS s final administrative decision under the

Administrative Review Law (20 ILCS 505/9.9 (West 1994)).

In the instant case, Smith initiated a service appeal on

April 6, 1995, after R.M. was removed from her care. On May 22,

1995, an emergency hearing was held by DCFS authorities to

consider Smith's request for the immediate return of R.M. On June

1, 1995, a hearing officer issued an interim decision determining

that there was no risk of imminent harm to R.M. if she were

returned to Smith s home until the service appeal process was

completed. On June 12, 1995, DCFS returned R.M. to Smith s home.

The GAL participated in the service appeal process and even

attended mediation on the issue of R.M.'s foster placement on June

15, 1995. The mediation was then to be followed by a formal

hearing, which was to be held in a expedited manner. Rather than

complete the service appeal process, the GAL filed this emergency

motion to change placement on June 19, 1995.

Under the circumstances here, the juvenile court had no

authority under the Act to conduct an emergency hearing to change

placement and order R.M.'s removal from Smith's home. Had there

been an immediate and urgent necessity to remove R.M. from Smith's

care, the juvenile court could have removed R.M. from such a

dangerous placement by holding a temporary/shelter care hearing

pursuant to section 2-10 of the Act. 705 ILCS 405/2-10 (West

1994). This section authorizes the juvenile court to remove a

child from a placement if it finds probable cause to believe it is

a matter of urgent or immediate necessity for the protection of

the child. The GAL, however, does not claim that it was an urgent

and immediate necessity to remove R.M. from Smith's home and

certainly the evidence does not support such a finding.

Dr. Shalowitz testified that Smith s home was not an

appropriate placement for R.M. and that it was best for her long-

term development that she be removed from Smith s home as soon as

possible. Dr. Shalowitz testified that keeping R.M. out of

Smith's home is an emergency matter. However, Dr. Shalowitz

obviously did not believe that R.M.'s removal from Smith's home

was an immediate and urgent necessity since she had recommended

that R.M. remain in Smith s home for 60 days after her release

from the hospital in order to give Smith another chance to

properly care for R.M. R.M was released from the hospital on

March 13, 1995, and was removed from Smith's home on April 3,

1995. Therefore, Smith was never given an opportunity to

implement the feeding techniques recommended in the 60-day

contract. The record reveals that R.M. gained twice as much

weight during her two-week stay in the hospital as she had during

the prior four months in Smith's care and that, two weeks after

her release from the hospital, she lost the weight she had gained

in the hospital. R.M. gained only three ounces in the four months

prior to hospitalization; however, she gained six ounces in the

hospital while on a high caloric drink, but she lost this weight

two weeks later. The loss of a few ounces does not indicate an

immediate or urgent necessity that R.M. be removed from Smith's

home. Rather, the GAL could have completed the service appeal

process without putting R.M. in any immediate danger.

The GAL next claims that the juvenile court had authority to

conduct a permanency review hearing and determine whether R.M.

should be removed from Smith's home. Section 1-3(11.2) of the Act

(705 ILCS 405/1-3(11.2)(West 1994)) defines a permanency review

hearing as one in which the juvenile court conducts a hearing to

review and determine the appropriateness of the permanency goal in

light of the permanency alternatives and the appropriateness of

the plan to achieve the goal. The GAL relies on In re Chiara C.,

279 Ill. App. 3d 761, 665 N.E.2d 404 (1996), in support of his

claim that the hearing here, although not called a permanency

review hearing, was in fact such a hearing. In Chiara, the court

found that the juvenile court proceeding was the equivalent of a

permanency review hearing since its purpose was to determine the

appropriateness of the minor's residence and educational services.

However, the emergency hearing to determine whether R.M.

should be removed from Smith's home was not a hearing to determine

the appropriateness of the long-term plans and goals that had been

set for R.M. Rather, R.M. was placed with Smith temporarily until

a fair hearing could be held under the service appeal process to

determine what placement was in R.M.'s best interests. Therefore,

this hearing, conducted on an emergency basis, cannot be

considered a permanency review hearing.

Furthermore, even if the juvenile court proceedings could be

considered a permanency review hearing, only where the court has

found an abuse of discretion may the court order DCFS to change

the permanency goal. Section 2-28 of the Act provides: "In

reviewing the permanency goal *** the standard of review to be

employed by the court shall be whether [DCFS], in setting the

permanency goal and the service plan, abused its discretion in

light of the best interests of the child, the permanency

alternatives, and the facts in the individual case." 705 ILCS

405/2-28(2) (West Supp. 1995). The trial court here did not apply

the abuse of discretion standard, but instead determined that the

placement of R.M. in Smith's home was not in R.M.'s best interest.

We therefore do not find any statutory authority permitted

the juvenile court to order R.M.'s removal from Smith's home. The

GAL s action was simply an attempt to circumvent the

administrative service appeal process. The trial court's order

removing R.M. from Smith's home and placing her in the Lawtons'

home is therefore vacated. In light of our decision, we need not

address DCFS and Smith's claims that the GAL failed to exhaust his

administrative remedies, nor need we address Smith's claim that

the juvenile court deprived her of her right to notice and an

opportunity to be heard when it ruled on the GAL's motion.

Vacated.

RAKOWSKI and TULLY, JJ., concur.