                                         FIRST DIVISION
                                         March 28, 2011


No. 1-10-2833


In re                              )    Appeal from the
                                   )    Circuit Court of
VICENTE G., REYNA G. and           )    Cook County.
AMERICA G.,                        )
                                   )
     Minors-Respondents-Appellants )    No. 05 JA 1253-55
                                   )
                                   )
(The People of the State of        )
Illinois and The Department of     )
Children and Family Services,      )
                                   )
     Petitioners-Appellees,        )
                                   )    Honorable
     v.                            )    Maxwell Griffin, Jr.,
                                   )
Sandra R.                          )    Judge Presiding.
                                   )
     Respondent).                  )


     PRESIDING JUSTICE HALL delivered the judgment of the court,

with opinion.

     Justices Lampkin and Rochford concurred in the judgment and

opinion.

                              OPINION

     The minor respondents, Vicente G., Reyna G. and America G.,

appeal from an order of the circuit court of Cook County granting

the motion of the petitioner, the Illinois Department of Children

and Family Services (DCFS), to terminate DCFS's guardianship of

the minors.   The court's order also terminated wardship and

closed the minors' cases.   On appeal, the minors contend that the

court erred when it granted DCFS's motion without making written

findings that the termination of guardianship was in the best
No. 1-10-2833

interest of the minors.     The minors further contend that DCFS's

procedural rule was not a valid basis for termination of its

guardianship.

                         PROCEDURAL BACKGROUND

     There is no dispute as to the relevant facts of this case.

On December 7, 2005, DCFS took protective custody of 14-month-old

Vicente, 2-year-old Reyna and 5-year-old America, based on

allegations that the minors' father, Vicente G., Sr. (Vicente,

Sr.), had fondled America's vagina.     Following a hearing on April

5, 2006, the court found the evidence insufficient to establish

sexual abuse but sufficient to establish neglect based on

evidence that they were living in an injurious environment.

Following a dispositional hearing, the court found that it was in

the best interest of the minors that they be adjudged wards of

the court and appointed D. Jean Ortega-Pion, DCFS's guardianship

administrator, as the minors' guardian with the right to place

them.     The court further found that Sandra and Vicente, Sr.,1 the

minors' parents, were unable to care for, protect, train or

discipline the minors and that it was in the minors' best

interest to remove them from the parents' custody.

     In the subsequent months, Sandra attended parenting classes

and otherwise complied with DCFS's service plan.     On January 17,

2007, following a hearing, the court granted Sandra's motion for

unsupervised day visits with the minors.     On July 31, 2007, the

     1
         Vicente, Sr. did not appear in these proceedings.

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No. 1-10-2833

court granted Sandra's motion for unsupervised overnight

visitation.    At the hearing on the motion, Ms. Reyes, the

caseworker, testified that Sandra was still in need of family

counseling.    Reyna and Vicente did not have special needs, but

America needed individual counseling.    Ms. Reyes did agree that

it was in the best interest of the minors that they have

unsupervised overnights visits with Sandra.    In granting Sandra's

motion, the court ordered that a child endangerment risk

assessment protocol (CERAP) be performed prior to the first

overnight visit.

     On October 19, 2007, a permanency planning hearing was

conducted; Sandra was not present.    Ms. Reyes testified that

Reyna had told her that Vicente, Sr., was present in Sandra's

residence.    Ms. Reyes made several visits to Sandra's residence

but found no evidence of his return.    According to Sandra,

Vicente, Sr., had returned to Mexico.    Subsequently, Ms. Reyes

discovered that Sandra had given birth to another child on

September 8, 2007.    The baby and its father (not Vicente, Sr.)

did not live with Sandra, but the father was present when the

minors visited Sandra.    The overnight visits were suspended, but

weekend visitation continued.

     While Ms. Reyes reported that the minors were still doing

well, the court expressed concern that some of the minors'

evaluations were still lacking and that America was still waiting

for therapy.    The court was also concerned about the implications


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No. 1-10-2833

from Sandra's unreported pregnancy and the regular presence of

the new baby's father in her residence.    The court ordered the

minors' cases to be returned to court each month until it was

satisfied that progress was being made.    The case was continued

to November 19, 2007, for a permanency hearing and to set a goal

for the minors' placement.

     In November 2007, following a visit, Sandra and the minors

disappeared.    The court issued child protection warrants.   In

subsequent proceedings, Sandra was held in indirect civil

contempt of court, and a bench warrant was issued for her arrest.

DCFS continued its efforts to locate the minors and Sandra.

     On January 8, 2009, a permanency planning hearing was held.

The court entered a goal of a return home in 12 months.    The

court found that DCFS had made reasonable efforts to locate the

family and deferred any finding regarding the minors' placement.

The court further found that neither Sandra nor Vicente, Sr., had

made substantial progress toward return of the minors to them.

Following a number of status hearings, DCFS filed a motion to

discharge its guardianship of the minors.

     On August 20, 2010, the court heard arguments on DCFS's

motion to terminate guardianship.     On behalf of the minors, the

public guardian argued that the guardianships should not be

terminated.    She pointed out that, if the guardianships were

terminated, the child protection warrants and any other orders

entered for the minors' protection and safety would end.


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No. 1-10-2833

Moreover, if DCFS was no longer their guardian, then the minors'

custody would revert to Sandra, even though there had been no

hearing to determine her fitness to have the minors returned to

her.    The public guardian further argued that, in order to close

the case, the court must make written findings that the closing

was in the best interest of the minors.    Finally, the public

guardian argued that the DCFS procedural rule, under which it

could terminate services and close a case if the family's

whereabouts are unknown for a year, was not a valid basis for

termination because the rule had never been adopted under the

procedure required by statute.

       DCFS responded that it had made reasonable efforts to locate

the minors and Sandra.    Owing to the minors' disappearance for

three years, the guardianship administrator could no longer

fulfill her duties as guardian.    Therefore, DCFS was requesting

that the guardian be discharged.

       After hearing the parties' arguments, the circuit court

questioned why the case had to remain open.    The court reasoned

that if the minors were located, the case could be reopened.     As

to the question of the minors' best interest, the court stated:

            "So the other thing that bothers me, I guess, is the

       reality of in what way are we able to assess best interest?

       I mean, it seems like [the public guardian's] argument is we

       should keep the case open just in case because one, it's not

       a big deal to have D. Jean Ortega-Piron keep the case open


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No. 1-10-2833

     and continue to make calls.       That's number one.   And number

     two, if we close it, the mother wins.       You know, she's found

     unable, a risk to her children, and we just shouldn't let

     her take off with the kids and defeat the court system.        I

     mean, essentially, that's what your argument is because the

     reality is keeping the case open here is in no way helping

     these kids because I can't assess what I need to assess

     every six months for a permanency hearing.       I can't set a

     goal.   I can't do anything."

     After hearing further argument from the parties, the court

stated as follows:

          "Okay.   Well, at this point in time, I think the

     Court's going to go ahead and rule and grant the motion for

     DCFS and allow D. Jean Ortega-Piron to discharge her

     guardianship for the three minors.       Having done that, the

     Court will also vacate their wardship as the Court does not

     believe that it can fulfill its duties and responsibilities

     given the present status that for over three years that

     neither the mother, nor the children can be located, and no

     one being able to suggest to this Court that we're any

     closer now than we were at any time since they went missing,

     and that there's any reason to believe that in the immediate

     near future that the children will be located."

Thereafter, the court entered an order vacating DCFS's

guardianship of the three minors.       The court also entered an


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No. 1-10-2833

order terminating the wardship and guardianship of the minors and

closing the cases.

     Pursuant to Illinois Supreme Court Rule 311 (eff. Feb. 26,

2010), the minors bring this expedited appeal.

                              ANALYSIS

        I. Compliance with the Juvenile Court Act of 1987

     The minors contend that the circuit court failed to comply

with section 2-31(2) of the Juvenile Court Act of 1987 (705 ILCS

405/2-31(2) (West 2008) (the Act)).

                      A. Standard of Review

     Whether a court failed to follow statutory requirements

presents a question of law, which we review de novo.      In re Aaron

R., 387 Ill. App. 3d 1130, 902 N.E.2d 171 (2009).

                          B. Discussion

     Section 2-31(2) of the Act provides in pertinent part as

follows:

     "Whenever the court determines, and makes written factual

     findings, that 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 this Act respecting that minor finally

     closed and discharged.   The 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


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No. 1-10-2833

     2008).

Section 2-28(4) of the Act provides in pertinent part as follows:

     "The minor or any person interested in the minor may apply

     to the court for a change in custody of the minor and the

     appointment of a new custodian or guardian of the person or

     for the restoration of the minor to the custody of his

     parents or former guardian or custodian.

                                * * *

           Custody of the minor shall not be restored to any

     parent, guardian or legal custodian in any case in which the

     minor is found to be neglected or abused under Section 2-3

     or dependent under Section 2-4 of this Act, unless the minor

     can be cared for at home without endangering his or her

     health or safety and it is in the best interest of the

     minor, and if such neglect, abuse, or dependency is found by

     the court *** to have come about due to the acts or

     omissions or both of such parent, guardian or legal

     custodian, until such time as an investigation is made as

     provided in paragraph (5) and a hearing is held on the issue

     of the health, safety and best interest of the minor and the

     fitness of such parent, guardian or legal custodian to care

     for the minor and the court enters an order that such

     parent, guardian or legal custodian is fit to care for the

     minor."    750 ILCS 405/2-28(4) (West 2008).

     The failure to comply with the requirements of the Act


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No. 1-10-2833

renders an order discharging a case ineffectual.     Aaron R., 387

Ill. App. 3d at 1139.     In that case, the minor was found to be

neglected.     Following a June 26, 2007, hearing, the court found

that the State had failed to prove new allegations of neglect,

returned custody of the minor to the father and closed the case.

Subsequently, the court entered orders terminating wardship and

DCFS's guardianship, even though DCFS had not requested that it's

guardianship be terminated.     DCFS appealed.

     The reviewing court found that the trial court had not

complied with section 2-31(2) of the Act when it ruled without

considering the best interest of the minor and without making the

required written findings.2     Moreover, in returning custody to

the parents, the court had not complied with section 2-28(4).

The June 26, 2007, hearing concerned the State's new allegations

of neglect; there was no finding that the parents were fit to

care for the minor.     Moreover, the court found that the evidence

supported the continuation of wardship and guardianship.     Aaron

R., 387 Ill. App. 3d at 1142.

     According to the record in this case, in 2006, the court

removed the minors from Sandra's custody finding the minors were

neglected because of their injurious environment and Sandra's

inability to protect or care for them.     Subsequently, in 2007,

Sandra violated the visitation order and disappeared with the

     2
         The reviewing court found the trial court's nunc pro tunc

order improper.     Aaron R., 387 Ill. App. 3d at 1140.

                                   9
No. 1-10-2833

minors.    In 2009, the court determined that Sandra had not made

any reasonable progress toward the return of the minors to her

custody.

     Nothing in section 2-31(2) requires the court to consider

only current information in its best interest determination.         At

the time the court granted DCFS's motion, Sandra had violated the

court's orders relating to visitation and taken physical custody

of the minors, placing the minors in the same neglectful

situation they had been in at the very beginning of these

proceedings.    The closing of the case deprived them of the

protective orders, which had been entered.      Yet, rather than

consider the minors' best interest, the court remained focused on

the practicalities of keeping the case open in the absence of

Sandra and the minors.

     We hold that in terminating the guardianship and wardship

and closing the minors' cases, the circuit court failed to comply

with section 2-31(2) of the Act.      The court failed to consider

whether the termination of wardship and guardianship was in the

best interest of the minors and failed to make written findings.

Moreover, as the court's termination of this case resulted in the

de facto return of the minors' custody to Sandra, section 2-31(2)

required the court to comply with the requirements of section 2-

28(4) of the Act.    The court did not hold a hearing, order an

investigation or make the necessary finding that Sandra was fit

to care for the minors.    See 705 ILCS 405/2-28(4) (West 2008).


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No. 1-10-2833

     We conclude that this case must be remanded for compliance

with section 2-31(2) of the Act.

                       II. DCFS Procedural Rule

     We find nothing in DCFS's administrative procedure rule that

permits DCFS, rather than the circuit court, to determine when

guardianship, as opposed to services, may be terminated.   In any

event, the best interest of the minors must always prevail over

DCFS's internal management rules.

                              CONCLUSION

     The orders vacating and terminating DCFS's guardianship of

the minors, terminating the court's wardship of the minors and

closing the case are vacated, and the cause is remanded for

further proceedings.

     Vacated and remanded with directions.




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