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                              Appellate Court                            Date: 2016.12.20
                                                                         16:50:26 -06'00'




                      In re L.O., 2016 IL App (3d) 150083



Appellate Court   In re L.O., a Minor (The People of the State of Illinois,
Caption           Petitioner-Appellee, v. Kristyn S., Respondent-Appellant).



District & No.    Third District
                  Docket No. 3-15-0083



Filed             November 1, 2016



Decision Under    Appeal from the Circuit Court of Peoria County, No. 14-JA-201; the
Review            Hon. David J. Dubicki, Judge, presiding.



Judgment          Affirmed.



Counsel on        Susan K. O’Neal, of Peoria, for appellant.
Appeal
                  Jerry Brady, State’s Attorney, of Peoria (Judith Z. Kelly, of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

                  Louise Natonek, of Peoria, guardian ad litem.



Panel             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) are 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.
¶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

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       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

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       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




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       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 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

           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.

                                                     -5-
       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.
¶ 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


                                                   -6-
       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.




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