                         No. 3--09--0345
_________________________________________________________________
Filed May 25, 2010
                              IN THE

                   APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                            A.D., 2010

In re M.P.,                     ) Appeal from the Circuit Court
                                ) of the 10th Judicial Circuit,
     a Minor                    ) Peoria County, Illinois,
                                )
(The People of the State of     )
Illinois,                       )
                                )
     Petitioner-Appellee,       ) No. 07--JA--288
                                )
     v.                         )
                                )
Debra P. and Darold P.,         ) Honorable
                                ) Kim L. Kelley,
     Respondents-Appellants).   ) Judge, Presiding.
_________________________________________________________________

     JUSTICE SCHMIDT delivered the opinion of the court:
_________________________________________________________________


     On October 23, 2008, the trial court granted the State's

motion for change of placement of the minor, M.P., from the

foster home of respondents, Debra P. and Darold P.   Respondents

filed a motion to intervene, which was denied.   Respondents then

filed a motion to reconsider the denial of the motion to

intervene and vacate the change of placement order, pursuant to

section 2--1401 of the Code of Civil Procedure (Code)   (735 ILCS

5/2--1401 (West 2008)).   Respondents argued that the change of

placement was void because they received inadequate notice of the
motion hearing.   The trial court denied the respondents' section

2--1401 motion.   On appeal, respondents argue that the

October 23, 2008, change of placement order was void because: (1)

respondents did not receive adequate notice; and (2) the court

lacked authority to remove the minor from foster placement with

respondents.   We affirm.

                               FACTS

     This matter came to the attention of the Department of

Children and Family Services (DCFS) on October 29, 2007, when

M.P. arrived in the emergency room with abdominal injuries

requiring several surgeries and a month-long hospital stay.     On

December 4, 2007, the State filed a juvenile petition alleging

that M.P. was abused and neglected.    The trial court granted DCFS

temporary custody of M.P., who was placed into relative foster

care with her maternal grandparents, the respondents.

     Catherine Shockley of Counseling and Family Services (CFS)

was assigned as the caseworker.   After their initial meeting at

the respondents' home, respondents would not allow Shockley into

their home because they claimed she was rude, disrespectful, and

unprofessional.   On February 8, 2008, a notice to remove M.P. was

given to the respondents by either CFS or DCFS.   Respondents

administratively appealed the removal decision, and a clinical

review was scheduled.   In the interim, on March 13, 2008, the

trial court ordered respondents to allow Shockley into their home


                                  2
or risk having M.P. removed.   On March 26, 2008, at the DCFS

clinical review, all parties agreed that the case would be

transferred to another agency.

     On April 17, 2008, M.P. was adjudicated abused and

neglected.   On May 15, 2008, at the dispositional hearing, the

trial court made M.P. a ward of the court and granted DCFS

guardianship, with the right to place.   The order indicated that

respondents were to "cooperate fully and completely with [the]

agencies."   The permanency goal was set as returning M.P. home to

her father, George C., within five months.   An initial permanency

review hearing was set for October 23, 2008.

     After the case was transferred, the new caseworker, Nicole

Friend, opined in a permanency review report that "[g]iven the

history of this foster home with the previous agency and

[respondents'] lack of cooperation and communication," it was

difficult to work with them.   On October 20, 2008, the State

filed a motion for change of placement, alleging that: (1)

respondents refused to allow a prior caseworker into their home

until ordered to do so on March 13, 2008; (2) the dispositional

order of May 15, 2008, indicated that respondents were to

"cooperate fully and completely with [the] agencies"; (3) after

M.P. was placed with respondents, Darold refused to meet with the

caseworker and Debra was uncommunicative; and (4) Darold failed

to report that M.P. became upset before visits with her father,


                                 3
was left with babysitters during visits, and returned "smelly and

hungry."

     On October 23, 2008, the court heard the State's change of

placement motion and conducted a permanency review hearing.   The

court acknowledged that the State filed "a Motion for Change of

Placement on October 20th, 2008, called it up for today's

hearing, sent notice to all counsel of record, parties of record,

and to the foster parents."

     Friend testified that although she did not have any concerns

as to M.P.'s physical safety, she was concerned with "how

[Darold] react[ed] to things" and "[t]he fact that [respondents]

haven't continued to cooperate the entire time." Friend felt that

M.P. was happy, but the fact that she played through Darold's

yelling without getting upset indicated to her that Darold likely

raised his voice on a regular basis.   Friend believed that M.P.

was well bonded to respondents and moving her out of respondents'

home "would have an impact [on M.P.] but she would adapt."

Friend recommended that M.P. be removed from respondents' home

and placed in a nonrelative home.

     The court acknowledged that since the motion for change of

placement affected the foster parents, it was appropriate "to

give them an opportunity, if they wish[ed], to state anything in

defense against the motion."   After Debra testified relevant to

the specific allegations in the motion, the trial court asked


                                 4
Debra, "Anything else you want to tell me?"   Debra replied that

she and Darold loved M.P. and that the caseworker had even noted

how much the respondents loved M.P., and "it would damage [M.P.]

to be removed from the only family that she has been close to."

Debra also confirmed that she and Darold were relative foster

parents and not licensed foster parents.   They were willing to

become licensed foster parents and do whatever it took to take

care of M.P.

     The trial court asked Darold if there was anything about the

allegations in the motion that he wanted to tell the court.

Darold testified in regard to the allegations.    Darold also told

the court that he loved M.P. and that he and M.P. were together

from the time she woke up until the time his wife got home from

work.   The trial court asked if Darold would like to say anything

else, but he declined.

     The trial court granted the State's motion for change of

placement on the basis of the "disobedience of repeated orders to

co-operate; not [being] trustworthy; [and] not serving the best

interest of the child."   Respondents were granted supervised

visits with M.P. once per month for one hour.    Also, the trial

court found George C. was dispositionally unfit and changed the

permanency goal from return home within five months to return

home within one year.

     On December 5, 2008, respondents filed a motion for an order


                                 5
granting standing and intervenor status.      In the motion,

respondents argued that they did not receive adequate notice of

the State's change of placement motion and, as a result, were

unable to hire an attorney.   On January 15, 2009, the trial court

denied respondents' motion.

     On February 13, 2009, respondents filed a motion to recon-

sider the denial of their motion to intervene and to vacate the

change of placement order, pursuant to section 2--1401 of the

Code (735 ILCS 5/2--1401 (West 2008)).      Specifically, respondents

argued that the order granting the State's request for change of

placement was void, or in the alternative should be vacated, and

that they should be allowed to intervene in the case.       Respon-

dents claimed they received less than 24 hours' notice prior to

the change of placement hearing.       Also, respondents claimed that

the State concealed the inadequate notice with a "fraudulent

Proof of Service."

     On April 2, 2009, the trial court denied the motion to

vacate, finding there was no just reason for delaying an appeal

of the order under Rule 304(a) (210 Ill. 2d R. 304(a)).        Also,

the trial court ordered that respondents were permitted to

intervene and noted that "they [were] now parties."

     On April 30, 2009, respondents filed an appeal of the trial

court's April 2, 2009, order denying their motion to vacate the

October 23, 2008, change of placement order.      We affirm.


                                   6
                               ANALYSIS

     On appeal, respondents argue that the trial court erred in

denying their section 2--1401 motion to vacate the October 23,

2008, order because the order was void in that: (1) the State

failed to provide adequate notice of the change of placement

proceedings; and (2) the court did not have the authority to

remove M.P. from their care.    Section 2--1401 establishes a

statutory procedure that permits a final judgment that is older

than 30 days to be vacated.    735 ILCS 5/2--1401 (West 2008).   To

obtain relief under section 2--1401, a defendant must set forth

factual allegations showing: (1) the existence of a meritorious

claim; (2) due diligence in presenting the claim; and (3) due

diligence in filing the section 2--1401 petition.    People v.

Pinkonsly, 207 Ill. 2d 555, 802 N.E.2d 236 (2003).    When a trial

court enters either a judgment on the pleadings of a section 2--

1401 petition or a dismissal of a section 2--1401 petition, we

review the order under a de novo standard.    People v. Vincent,

226 Ill. 2d 1, 871 N.E.2d 17 (2007).

                  I. Denial of Motion to Vacate

     First, respondents claim that the State's failure to give

them proper notice of the change of placement motion violated

their due process rights and rendered the order void.    Our

supreme court has held that the failure to give proper notice of

juvenile proceedings to parents of a minor and to any necessary


                                  7
parties is a due process violation of the parents' constitutional

rights.    In re A.H., 195 Ill. 2d 408, 748 N.E.2d 183 (2001).

However, foster parents are not considered necessary parties who

have a due process right to proper notice of the proceedings.

A.H., 195 Ill. 2d 408, 748 N.E.2d 183; 705 ILCS 405/1--1 et seq.

(West 2008) (providing that necessary parties include parents or

legal guardians but not foster parents).

     Nonetheless, under the Juvenile Court Act of 1987 (Act) (705

ILCS 405/1--1 et seq. (West 2008)), respondents had a statutory

right to adequate notice and a statutory right to be heard.

Pursuant to section 1--5(2)(a) of the Act, "any current or

previously appointed foster parent *** interested in the minor

has the right to be heard by the court, but does not thereby

become a party to the proceeding."    705 ILCS 405/1--5(2)(a) (West

2008).    "In addition[,] *** any current foster parent *** shall

be given adequate notice at all stages of any hearing or

proceeding under this Act."   705 ILCS 405/1--5(2)(a) (West 2008).

     Here, respondents did not receive adequate notice of the

change of placement motion as required by the Act.   However,

respondents waived the issue by participating at the hearing and

failing to object to the inadequate notice.   See A.H., 195 Ill.

2d 408, 748 N.E.2d 183 (foster parents waived notice by failing

to object during the hearing and by testifying at the continued

hearing the following day).   Respondents were present at the


                                  8
hearing and did not request a continuance or object to the

proceeding.    Additionally, respondents were not prejudiced

because they were given a full opportunity to exercise their

right to be heard.    The record demonstrates that the court gave

each respondent an opportunity to tell the court anything he or

she wished and respondents each did so.    Therefore, any error was

both harmless and waived.     See A.H., 195 Ill. 2d at 424, 748

N.E.2d at 193.

          II. Authority to Remove M.P. From Foster Placement

     Respondents also argue that the October 23, 2008, order was

void or should be vacated because the court did not have

authority to order a change of placement and removal of M.P. from

their home.    We disagree.

     Courts do not have original jurisdiction over the removal of

a child from his parents based upon abuse, neglect, or dependency

because the issue was not known at common law.      A.H., 195 Ill. 2d

408, 748 N.E.2d 183.    However, through the Act the legislature

has conferred limited jurisdiction of such matters on the circuit

courts.    A.H., 195 Ill. 2d 408, 748 N.E.2d 183.   Therefore, the

court's power to act is purely statutory, and "'[a]ny action

taken by the circuit court that exceeds its jurisdiction is void

and may be attacked at any time.'"     A.H., 195 Ill. 2d at 416, 748

N.E.2d at 189, quoting In re Estate of Gebis, 186 Ill. 2d 188,

193, 710 N.E.2d 385, 387 (1999).


                                   9
     The purpose of the Act is to serve the best interest of the

minor.    705 ILCS 405/1--2(1) (West 2008).   Under section 2--28(2)

of the Act, a juvenile court is authorized to hold permanency

review hearings until the service plan and permanency goal have

been achieved.    705 ILCS 405/2--28(2) (West 2008).   "The court

shall set a permanency goal that is in the best interest of the

child."    705 ILCS 405/2--28(2) (West 2008).   In setting the

permanency goal, the court shall consider, among other things,

the following factors: (1) the age of the child; (2) the options

available for permanence; (3) the current placement and intent of

family regarding adoption; and (4) the emotional, physical, and

mental status or condition of the child.      705 ILCS 405/2--28(2)

(West 2008).

     Permanency review hearings may include a review of the

efforts made toward achieving the permanency goal and service

plan.    705 ILCS 405/1--3(11.2) (West 2008).   Also, section 2--

23(3) of the Act authorizes the juvenile court to enter any other

orders necessary to fulfill the service plan.     705 ILCS 405/2--

23(3) (West 2008).    However, the court is not empowered to order

specific placements to be included in the plan.     705 ILCS 405/2--

23(3) (West 2008); see also In re R.M., 288 Ill. App. 3d 811, 681

N.E.2d 652 (1997); In re M.V., 288 Ill. App. 3d 300, 681 N.E.2d

532 (1997).

     A change of placement request can be construed as seeking a


                                 10
review of efforts made to achieve the permanency goal and a

foster parent's effort to support the permanency goal.    In re

A.L., 294 Ill. App. 3d 441, 689 N.E.2d 1167 (1998).   Here, the

State's request for change of placement was essentially a request

for a review of the respondents' efforts toward achieving the

permanency goal.

     We acknowledge that under section 2--23(3) of the Act, a

trial court lacks the statutory authority to order specific

placement of a minor with a specific foster family.   In this

case, the court did not order a specific placement but ordered

that M.P. be removed from respondents' home and "placed

elsewhere."   See A.L., 294 Ill. App. 3d 441, 689 N.E.2d 1167

(distinguishing an order for removal for unspecified alternate

placement from an order for specific placement).   Accordingly, we

find the court was authorized in addressing the change of

placement motion and determining whether it was in M.P.'s best

interest to remove her from respondents' foster care.    As such,

the court's change of placement removal order was not void.

     Consequently, the respondents failed to set forth factual

allegations showing the existence of a meritorious claim in their

section 2--1401 petition.   As a result, we find that the trial

court did not err when it denied respondents' motion to vacate

the change of placement order of October 23, 2008.    Accordingly,

we deny respondents' request that this court "reverse the order


                                11
changing the placement of [M.P.], and remand the case with the

directions to return the minor to the custody of the

respondents."

                           CONCLUSION

     The judgment of the circuit court of Peoria County is

affirmed.

     Affirmed.

     McDADE and O'BRIEN, JJ., concur.




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