                                       2016 IL App (3d) 150083

                               Opinion filed November 1, 2016
     ______________________________________________________________________________

                                                IN THE

                                 APPELLATE COURT OF ILLINOIS

                                          THIRD DISTRICT

                                                  2016


     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.


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¶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


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     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


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       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


                                                       5
       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,

                                                         6
       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.


                                                            7
       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


                                                         8
       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


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       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.

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¶ 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




                                                       11
       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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