Opinion filed November 1, 2016 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
In re L.O., ) Appeal from the Circuit Court ) of the 10th Judicial Circuit, a Minor ) Peoria County, Illinois. ) (The People of the State of Illinois, ) ) Appeal No. 3-15-0083 Petitioner-Appellee, ) Circuit No. 14-JA-201 ) v. ) ) Kristyn S., ) The Honorable ) David J. Dubicki, Respondent-Appellant). ) Judge, presiding. ______________________________________________________________________________
JUSTICE CARTER delivered the judgment of the court, with opinion. Justices McDade and Wright specially concurred, with opinion. ______________________________________________________________________________
OPINION
¶1 The Department of Children and Family Services (DCFS) filed a juvenile petition
alleging that the minor child, L.O., was neglected and seeking to make the child a ward of the
court. After hearings, the trial court found that the child was neglected and that the child’s
mother, respondent Kristyn S., remained dispositionally unfit. The trial court made the child a
ward of the court, named DCFS as the child’s guardian, and ordered respondent to complete
certain tasks. Respondent appeals the dispositional order, arguing that the trial court had no
authority to order her to complete the tasks assigned because a service plan had not yet been filed
by the caseworker as required by statute. We affirm the trial court’s judgment. ¶2 FACTS ¶3 Respondent and Daniel O. (father) were the biological parents of the minor child, L.O.,
who was born in August 2014. At the time of L.O.’s birth, respondent informed hospital
personnel that she had an open child welfare case with DCFS and that she had previously been
found unfit in two juvenile court cases pertaining to her other children. In addition, the hospital
staff tested L.O.’s umbilical cord blood and found it to be positive for cocaine. The hospital
personnel contacted the DCFS hotline, and DCFS took protective custody of L.O. A few days
later, the trial court held a shelter care hearing and granted DCFS temporary custody of L.O.
L.O. was placed with his paternal grandparents. ¶4 DCFS subsequently filed a juvenile neglect petition as to L.O. in the trial court. The
petition, as later amended, alleged that L.O. was a neglected minor because he had been
subjected to an injurious environment in that: (1) respondent was previously found unfit in two
other juvenile cases in April 2013, and there had been no subsequent finding of fitness; (2)
respondent had not completed the services that would result in the return home of L.O.’s siblings
or a finding of fitness; (3) respondent had a history of a substance abuse problem involving
alcohol; (4) the father had a substance abuse problem involving cocaine, marijuana, and alcohol;
(5) the father had a criminal history and was currently involved with the drug court program in
Peoria County; and (6) L.O.’s umbilical cord tested positive for cocaine on the date of his birth.
The father and respondent filed answers to the amended juvenile neglect petition and either
stipulated to, or did not demand strict proof of, the allegations contained in the petition. *3 ¶5 In December 2014, an adjudicatory hearing was held on the amended juvenile neglect
petition. Respondent was present in court for the hearing with her attorney. The father, who was
in prison, was not present at his own request. Based upon the parties’ answers to the amended
petition, certain exhibits that were presented (the medical and drug records and the trial court
files from the prior juvenile cases involving respondent’s other children), and a proffer from the
State, the trial court found that L.O. was a neglected minor. ¶6 A dispositional hearing was held immediately thereafter. A dispositional report, one
addendum, and an integrated assessment report (collectively referred to as the dispositional
report or the report) had been prepared for the hearing by the caseworker. Respondent did not
show up for her appointment with DCFS workers for the integrated assessment interview, so
information that had previously been gathered had to be used for that portion of the integrated
assessment. Of relevance to this appeal, the dispositional report indicated that the father was
currently in prison. Respondent was living at times with her mother and at other times with her
new boyfriend. Respondent had previously been referred for the following services (presumably
as a result of the prior juvenile court cases involving her other children): (1) to complete
individual counseling, a domestic violence course, and a parenting course; (2) to perform random
drug tests; and (3) to attend scheduled visits with her children. According to the report, for the
most part, respondent had not been making progress on those services, although she had attended
a few counseling sessions. At the end of the report, the caseworker recommended that respondent
be ordered to complete most of the same services. ¶7 During the dispositional hearing, the caseworker was questioned by respondent’s attorney
about whether a service plan had been filed and about the services that he was recommending for
respondent. The caseworker stated that the family had a service plan in place, but it had not been
provided to the parties or to the court in this case because it had not been updated. In addition,
the family had a visitation plan in place, which also had not been provided to the parties or to the
court in this case. When specifically asked, the caseworker could provide no reason for why the
visitation plan had not been distributed. When asked about the services he was recommending,
the caseworker acknowledged that he had not yet referred respondent for a new substance abuse
assessment and stated that he did not do so because he did not want to overwhelm respondent.
The caseworker commented that in his experience, requiring too many services at one time was a
setup for failure. ¶8 During the argument portion of the dispositional hearing, the State asked that the trial
court adopt the caseworker’s recommendations, as contained in the dispositional report,
regarding the services or tasks that respondent should be required to complete. In addition to
those services, the State also asked that respondent be required to obtain a psychological
evaluation and to participate in an updated integrated assessment interview. Respondent’s
attorney argued against some of the services that had been recommended and asked the trial
court to only assign those services that respondent actually needed. Respondent’s attorney
claimed that the caseworker had ignored the one problem that respondent was known to have—a
substance abuse problem. Respondent’s attorney pointed out that pursuant to the applicable
statutes, the caseworker was supposed to file with the court a visitation plan within 10 days after
the shelter care hearing and a service plan within 45 days after L.O.’s placement, but the
caseworker had failed to do so. Respondent’s attorney asked that the case be set for a hearing
within the next 30 days for a review of those two documents. ¶9 When the trial court specifically asked the guardian ad litem (GAL) as to her position on
the caseworker’s failure to file the two documents within the time prescribed, the GAL
responded that she did not see the need for the caseworker to do so, even if the statutes required
it. When the State was asked about the matter, the State agreed that the filing was required and
suggested that the court order the agency to file both documents within 15 days. The State
suggested that it was not necessary for the court to hold a review hearing on the documents and
that once the documents were filed, the parties could file the appropriate pleadings if there were
any problems with the documents. ¶ 10 At the conclusion of the dispositional hearing, the trial court found that the father was
unfit and that respondent remained unfit. The basis for the finding of unfitness as to respondent
was listed in the order as the drug and alcohol problem that she was not addressing, her failure to
successfully participate in services, and the fact that L.O. was born with cocaine in his system.
The trial court made L.O. a ward of the court and named DCFS as L.O.’s guardian with the right
to place L.O. As part of its dispositional ruling, the trial court ordered respondent to complete
several tasks, which were designed to correct the conditions that led to the adjudication and
removal of L.O. Those tasks included (1) to cooperate fully and completely with DCFS or its
designee; (2) to obtain a drug and alcohol assessment and a psychological examination and to
comply with the treatment recommendations contained therein; (3) to perform three random drug
tests per month; (4) to successfully complete individual counseling, a parenting course, and a
domestic violence course; (5) to obtain and maintain stable housing that was conducive to the
safe and healthy rearing of the minor; (6) to visit with the minor as scheduled; (7) to participate
in an updated integrated assessment interview; and (8) to abstain from taking alcohol or drugs
that were not prescribed by a doctor. ¶ 11 After announcing its dispositional ruling and admonishing the parties as to their appeal
rights, the trial court specifically questioned respondent’s attorney—the same attorney that
respondent now has on appeal—to make sure that she was not requesting a continuance of the
dispositional hearing due to the lack of a filed visitation or service plan. The following
conversation ensued:
“THE COURT: [Counsel], I didn’t interpret any of your remarks about the
visitation plan or the service plan to in any[ ]way suggest or request that the
dispositional hearing be continued. Am I right or am I not?
[RESPONDENT’S ATTORNEY]: No.
THE COURT: Oh.
[RESPONDENT’S ATTORNEY]: I’m not asking. I’m asking that a final
order be entered today.
THE COURT: Okay. Thank you.” ¶ 12 The trial court ordered DCFS to file and to distribute to the attorneys both the visitation
plan and the service plan within 21 days. Both plans were filed with the court about 12 days
later. For the most part, the action steps listed for respondent in the service plan were the same as
the tasks that respondent had been ordered to complete as part of the dispositional order. Many
of the tasks, however, were broken down into smaller component steps. ¶ 13 Respondent subsequently filed this appeal to challenge the trial court’s dispositional
order. ¶ 14 ANALYSIS ¶ 15 On appeal, respondent argues that the trial court had no authority, as part of its
dispositional ruling, to order her to complete the tasks assigned because a service plan had not
yet been filed by the caseworker as required by statute. Based upon the alleged lack of authority,
respondent asks that we vacate the trial court’s dispositional order, that we remand this case for
the trial court to hold a new dispositional hearing, and that we direct the trial court to: (1) follow
the statute in the future regarding the filing of a service plan and (2) limit the services that
respondent is ordered to complete to those found in the service plan, unless the trial court makes
a specific finding as to why those services are not appropriate. ¶ 16 The State argues that the trial court’s dispositional order—including the tasks assigned—
was proper and should be affirmed. The State asserts that the statutory requirement regarding the
filing of a service plan is directory and not mandatory and that the caseworker’s failure to
comply with that requirement within the time period specified did not deprive the trial court of
the authority, as part of its dispositional ruling, to order respondent to complete the tasks
assigned. 1 ¶ 17 In general, on appeal in a juvenile neglect case, we will not reverse a trial court’s
dispositional determination unless its factual findings were against the manifest weight of the
evidence or it committed an abuse of discretion by selecting an inappropriate dispositional order.
In re A.S., 2014 IL App (3d) 130163, ¶ 21. However, to the extent that we are called upon in this
case to interpret the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2014)) to
determine whether the trial court exceeded its authority under the Act, or to determine whether a
requirement under the Act is mandatory or directory, we will apply a de novo standard of review
in resolving those questions. See In re N.C., 2014 IL 116532, ¶ 42 (as to the interpretation of the
Act); In re M.I., 2013 IL 113776, ¶ 15 (as to the mandatory or directory nature of a statutory
1 The State also asserts that the trial court’s dispositional order did not constitute an abuse
of discretion. We need not address that additional assertion, however, because respondent has
only argued that the trial court lacked the authority to order her to complete the assigned tasks.
requirement); In re S.B., 305 Ill. App. 3d 813, 816-17 (1999) (as to whether the trial court
exceeded its authority under the Act). ¶ 18 Respondent’s claim of a lack of authority in this case is based upon sections 2-10.1 and
2-23(3) of the Act (705 ILCS 405/2-10.1, 2-23(3) (West 2014)). Section 2-10.1 provides that
DCFS “shall” file a case or service plan within 45 days after a minor is placed in shelter care as
provided for in section 2-10 of the Act (705 ILCS 405/2-10, 2-10.1 (West 2014)). The service
plan is designed to, among other things, stabilize the family situation and reunify the family. See
20 ILCS 505/6a (West 2014). When appropriate, the service plan shall include a
recommendation concerning evaluations for alcohol or drug abuse. See id. As part of its
dispositional ruling in a juvenile neglect case, the trial court shall enter any other orders that are
necessary to fulfill the service plan. 705 ILCS 405/2-23(3) (West 2014). ¶ 19 In this particular case, there is no dispute that DCFS did not file the service plan with the
trial court within 45 days after L.O. was placed in shelter care as required under the statute. See
705 ILCS 405/2-10.1 (West 2014). There is also no dispute in this case that DCFS did not have
the service plan on file at the time of the dispositional hearing, before the dispositional order was
entered, or before respondent was assigned the tasks in question to complete. Thus, the question
before this court becomes whether DCFS’s failure to comply with the statutory command
contained in section 2-10.1 of the Act deprives the trial court of the authority to order respondent
to complete the assigned tasks. The answer to that question turns on whether the statutory
command contained in section 2-10.1 is mandatory or directory in nature. ¶ 20 The mandatory/directory analysis is used to determine whether the failure to comply with
a particular procedural step will invalidate the governmental action to which the procedural step
relates. M.I., 2013 IL 113776, ¶ 16. Under the mandatory/directory analysis, a statutory
command is mandatory if the intent of the legislature dictates a particular consequence for failure
to comply with the command. Id. Absent such legislative intent, the statute will be deemed
directory, and no particular consequence will flow from noncompliance. Id. In conducting the
mandatory/directory analysis, a court will presume that language issuing a procedural command
to a governmental official indicates an intent that the command is directory, even if the command
contains the word “shall.” Id. ¶¶ 17, 19. However, the presumption of a directory reading will be
overcome, and the command will be read as mandatory if either one of the following two
conditions is present: (1) when there is negative language in the statute prohibiting further action
or indicating a specific consequence in the case of noncompliance or (2) when the right the
statute is designed to protect would generally be injured if a directory reading was given to the
command. Id. ¶ 17; In re Rita P., 2014 IL 115798, ¶ 44. ¶ 21 In the present case, after having reviewed the statutory language, we find that the
procedural command contained in section 2-10.1 of the Act—that DCFS “shall” file a service
plan with the court within 45 days after the minor’s placement in shelter care—is directory and
not mandatory. See M.I., 2013 IL 113776, ¶¶ 16-17; Rita P., 2014 IL 115798, ¶¶ 44-45.
Although the word “shall” is used in the phrasing of the command, the remainder of the statute
contains no negative language that prohibits further action or imposes a specific consequence in
the event of noncompliance. See M.I., 2013 IL 113776, ¶¶ 16-17, 19; Rita P., 2014 IL 115798,
¶¶ 44-45. Respondent makes no argument to the contrary, nor does respondent claim that the
right that the statute is designed to protect would be injured if a directory reading is given to the
command. Therefore, the presumption that the statutory command is directory must be applied
here. See M.I., 2013 IL 113776, ¶ 17; Rita P., 2014 IL 115798, ¶ 44. Because the statutory
requirement is only directory, the fact that DCFS did not file a service plan within 45 days of
placement or prior to disposition does not deprive the trial court of the authority to order
respondent to complete certain tasks as part of its dispositional ruling. See M.I., 2013 IL 113776,
¶ 16. ¶ 22 In rejecting respondent’s argument in this case, we are mindful that at the dispositional
hearing, respondent’s attorney was specifically questioned by the trial court as to whether she
was seeking a continuance because of the caseworker’s failure to file the visitation and service
plans. Respondent’s attorney indicated that she was not seeking a continuance and stated that she
was asking the trial court to enter a final order. Respondent cannot now complain on appeal that
the trial court did just that. See People v. Segoviano, 189 Ill. 2d 228, 241 (2000) (a defendant
cannot ask the trial court to proceed in a certain manner and then claim on appeal that it was
error for the trial court to do so). ¶ 23 CONCLUSION ¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court of Peoria County. ¶ 25 Affirmed. ¶ 26 JUSTICE McDADE, specially concurring. ¶ 27 I concur with the decision of this panel that “shall” in section 2-10.1 of the Act actually
means “may.” I concur because the unambiguous supreme court precedent cited by the author
compels a finding that in this statute “shall” is merely directory and not mandatory. ¶ 28 I write separately to point out that, although there are no express negative consequences
for a failure to file the service plan and visitation schedule within the statutorily prescribed time
frame, practical negative consequences flowed from the caseworker’s failure of compliance. *11 ¶ 29 Although he testified that there were service plans and visitation schedules in the prior
cases involving L.O.’s siblings, the caseworker conceded that nothing had been prepared
specifically for the case of L.O. Moreover, he acknowledged that he had not yet referred
respondent for a new substance abuse assessment in this case because “he did not want to
overwhelm respondent.” When asked, the guardian ad litem expressed no concern about the
failure to comply with the statute. Respondent’s attorney initially pointed out the failure of
compliance, noted that the caseworker’s oral recommendations ignored the single problem that
the respondent was known to have (substance abuse), and asked that the documents be filed and
another hearing be scheduled within 30 days to review them. The attorney then ultimately
waived all of these requests. Although our decision suggests that this waiver has some
significance in this case, it is, in fact, totally irrelevant to a statutory construction. The State
acknowledged the obligation to file, suggested a 15-day deadline for filing the documents, but
denied that any hearing was necessary. Finally, as the opinion states in supra ¶ 10, “[one] basis
for the [court’s] finding of unfitness as to respondent was listed in the order as the drug and
alcohol problem that she was not addressing.” This would, of course, be the same drug and
alcohol problem that had not been presented to her in a written service plan in this case and had
not even been orally recommended so as not to overwhelm the respondent. ¶ 30 The sum of the foregoing is that, in reality, respondent was found unfit as to L.O. for
failure to comply with a requirement imposed upon her in the cases of L.O.’s siblings, who had
been previously removed from her custody. This violates the statutory requirement, confirmed by
the supreme court, that each case involving one of multiple children of the same parent be
resolved on its own facts. In re Arthur H., 212 Ill. 2d 441, 468-69 (2004); In re A.W., 231 Ill. 2d
92, 103 (2008) (“ ‘[e]ach case concerning the adjudication of minors *** must be reviewed
according to its own facts’ ” (quoting In re Arthur H., 212 Ill. 2d at 468-69)). ¶ 31 The legislature has developed a comprehensive and structured scheme with interlocking
requirements to help families repair insecure or unsafe relationships or, failing such repair, to
allow the State to remove children from injurious environments to safe and stable homes within a
time reasonable to promoting their best interests. The filing of documents in an appropriate
sequence and time frame is an integral part of achieving that purpose. Neither DCFS nor the
State nor the court should be allowed to pick and choose which parts of the statute should be
followed and which can intentionally be ignored. To find otherwise is to risk undermining the
legislative purpose and thwarting the legislative scheme. Viewed from this perspective, I believe
it is conceptually wrong to find that (1) an actual filing (2) made in conformity with the statutory
sequence and deadline is anything other than mandatory. ¶ 32 JUSTICE WRIGHT, specially concurring. ¶ 33 I agree with the author’s conclusion that the procedural command contained in section 2-
10.1 of the Act is directory. I write separately because, while I recognize the missed deadline
failure does not affect the court’s jurisdiction in this case, other potential negative consequences
exist to deter noncompliance. ¶ 34 First, an employer may reprimand a caseworker for the failure to comply with a statutory
deadline such as this. Second, the absence of a timely service plan may be asserted by a parent in
support of a motion for a continuance or as a defense in another case. Nonetheless, the untimely
service plan in this case is not outcome determinative because this mother consented to the
adjudicatory order without raising the issue or requesting more time for compliance.