                                                     SIXTH DIVISION
                                                   February 4, 2011


No. 1-09-2481


In re                                    )     Appeal from the
                                         )     Circuit Court of
K.D., a Minor                            )     Cook County.
                                         )
(The Department of Children and Family   )     No. 09 JD 20007
 Services, and D. Jean Ortega-Piron,     )
 Guardianship Administrator of the       )
 Department of Children and Family       )
 Services,                               )     The Honorable
                                         )     Richard F. Walsh,
     Appellants).                        )     Judge Presiding.


     PRESIDING JUSTICE GARCIA delivered the judgment of the

court, with opinion.

     Justice R.E. Gordon concurred in the judgment and opinion.

     Justice Cahill dissented, with opinion.

                              OPINION

     On July 9, 2009, the circuit court appointed the Illinois

Department of Children and Family Services (DCFS) as guardian of

minor K.D., then age 16, in a delinquency proceeding after making

K.D. a ward of the court.   DCFS contends the circuit court was

without subject matter jurisdiction to enter such an order,

rendering the order void.   According to DCFS, the Juvenile Court

Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2008)) requires

the filing of a neglect petition before a court may appoint DCFS

as guardian of a minor at least 15 years of age, in a delinquency

proceeding pursuant to section 5-710(1)(a)(iv) of the Act (705

ILCS 405/5-710(1)(a)(iv) (West 2008) ("Kinds of sentencing

orders")).   Counsel for the minor, supported by the State's
No. 1-09-2481

Attorney of Cook County (County), contends section 5-

710(1)(a)(iv), as amended in 2008, confers upon the circuit court

authority to determine that "an independent basis of abuse,

neglect, or dependency" exists, without strictly adhering to the

procedural requirements for neglect petitions in Article II of

the Act.   We agree with K.D. and the County, and affirm.   Based

on the language added in 2008, section 5-710(1)(a)(iv) of the Act

vested the circuit court with authority to make a finding that

K.D. was neglected based on the social investigation report that

neither parent could care for him, which provided an independent

basis for a neglect finding apart from the facts underlying the

delinquency petition.   Based on such a finding, the court had

authority to place K.D. in the guardianship of DCFS as a

condition of his probation.

                              BACKGROUND

     In March 2009, a delinquency petition was filed regarding

K.D., who was 16 years old at the time.    The petition charged

K.D. with 10 counts of delinquency, including aggravated robbery,

robbery, aggravated battery, battery, theft, and theft from

person.    The delinquency petition alleged that in February 2009,

K.D. stole an MP3 player, Blackberry device, camera, and credit

card after repeatedly kicking and punching the victim in the

face.   The petition asked that K.D. be made a ward of the court.

At his arraignment, K.D. pleaded not guilty.    He was ordered to




                                  2
No. 1-09-2481

abide by a curfew.1

     In May 2009, K.D. pleaded guilty to one count of felony

theft from person and was adjudicated delinquent.    K.D. was not

taken into custody, but was ordered to have no contact with the

victim.

     In July 2009, probation officer Nancy Freedman submitted a

social investigation report for consideration at the sentencing

hearing pursuant to section 5-701 of the Act (705 ILCS 405/5-701

(West 2008) ("Social investigation report")).    According to the

report, prior to the February 2009 incident, K.D. had several

police "station adjustments" for theft and assault, criminal

damage to property, consumption of liquor by a minor, and

obstruction of justice.    The report indicated K.D. had been

diagnosed with emotional problems, had a history of alcohol and

marijuana abuse, and was a member of a street gang.    According to

the report, neither of K.D.'s parents, who never married and were

no longer a couple, provided for K.D.; nor would the parents be

able to provide for him in the foreseeable future as neither

parent had a stable living environment.    Each parent told the

probation officer that K.D. could not live with him or her.       In

her report, Ms. Freedman noted, "it is not known where K.D. is

staying."    Ms. Freedman concluded "the Probation Department does

not appear to have resources that can meet K.D.'s needs."    In her

     1
         The record does not disclose to whose custody K.D. was

released.

                                  3
No. 1-09-2481

report, Ms. Freedman suggested that K.D. "possibly *** would be

eligible for a hearing before the DCFS Dependency Committee."

     On July 6, 2009, K.D. appeared before the court for

sentencing on his guilty plea on the February 2009 incident and

for an arraignment on a new delinquency petition, charging retail

theft of alcohol, to which he pleaded not guilty.   K.D.'s father

and grandmother were present in court; his mother did not appear.

The court asked probation officer Freedman whether she

recommended a disposition.   Ms. Freedman stated she was

constrained because she did not know K.D.'s current living

situation as her attempts to locate K.D. following her initial

interview with him for the social investigation report were

unsuccessful.   Ms. Freedman stated she could ask that K.D. be

"screened in front of a committee with DCFS. [But] I think that's

really a long shot."   She opined K.D. appeared to be a danger to

himself and others.    The assistant State's Attorney and counsel

for K.D. noted K.D. had no place to stay, was emotionally

unstable, was not attending school, was too young to be living on

the streets, and was without any resources.   The court ordered

K.D. taken into custody and continued the matter for a DCFS

representative to be present.

     Three days later, on July 9, 2009, a DCFS representative

appeared at the court hearing.   DCFS noted it appeared with short

notice of the hearing and was aware of few facts of the case.

DCFS questioned the juvenile court's jurisdiction to place K.D.


                                  4
No. 1-09-2481

in the guardianship of DCFS based on In re E.F., 324 Ill. App. 3d

174, 754 N.E.2d 837 (2001), and In re A.H., 195 Ill. 2d 408, 748

N.E.2d 183 (2001).    DCFS argued the cases stand for the

proposition that a petition for adjudication of wardship of a

minor under Article II of the Act must be filed before a court

may enter a DCFS guardianship order.      The trial judge responded,

"The case law isn't [so] clear."       The court observed section 5-

710(1)(a)(iv) of the Act had been amended after the cases DCFS

cited were decided and noted the time to act regarding K.D. was

running short: "[T]he problem is, *** I got a kid that is going

to turn 17.    And I know if he does and I haven't sentenced him,

you will be right back here saying, ['G]ee, that statute is good

law.[']"2

     The juvenile court then sentenced K.D. to three years'

probation on the February 2009 incident.      The juvenile court also

found K.D. neglected based on the social investigation report

finding that neither parent would allow K.D. to live with him or

her and that K.D. had no known residence.      The court declared

K.D. "to be a ward of the court because of neglect" and appointed

DCFS as K.D.'s guardian.    The court found "[t]he appropriate



     2
         The parties agree that the court was mistaken in its

belief that it had to act before K.D. turned 17, rather than 18,

in light of the felony and misdemeanor charges.      See 705 ILCS

405/5-105(3) (West 2008) ("Definitions").

                                   5
No. 1-09-2481

services aimed at family preservation or family reunification

have been unsuccessful."   As a special condition of his

probation, the court required K.D. to cooperate with any

placement by DCFS.

     In its motion to reconsider, DCFS argued that a delinquent

minor, following sentencing under section 5-710(1)(a)(iv) of the

Act, may only be placed in the guardianship of DCFS in two

circumstances: (1) when the minor is under 15 years of age, and

(2) for a minor 15 years or older, when a court finds, pursuant

to Article II of the Act, that there is an independent basis,

other than the minor's delinquency, for finding abuse, neglect,

or dependency.   Under the second circumstance, subject matter

jurisdiction would vest in the juvenile court to permit the entry

of a DCFS guardianship order only upon the filing of a neglect

petition under Article II of the Act.   No such petition was filed

regarding K.D.

     Counsel for K.D. argued that amended section 5-710(1)(a)(iv)

of the Act permitted a juvenile court, in the course of

sentencing a minor, to make a finding of neglect, independent of

the delinquency allegations, and place him or her in the

guardianship of DCFS.   K.D.'s counsel argued the sentencing

section contained no explicit requirement that a neglect petition

be filed to vest the court with subject matter jurisdiction

before DCFS may be appointed guardian of a minor.   The court took

DCFS's motion under consideration.


                                 6
No. 1-09-2481

       At the August 10, 2009, hearing, DCFS set out the procedures

it believed must be followed to permit a juvenile judge, in a

sentencing context, to make a finding of neglect regarding a

minor.    In denying the motion to reconsider, the court rejected

DCFS's contention that the procedures it recited were mandated by

law:

                 "I don't think I have to wait for

            [DCFS], and some other judge, to

            independently make that decision.   I can hold

            a hearing, which I held, and find that he is

            a dependent, neglected minor.   That's what

            the statute says.   And I don't believe that I

            have to follow some [set] procedure because I

            don't think that [sentencing] statute

            incorporates all of the procedural and

            bureaucratic requirements of [Article] II.

            It's a sentencing statute and it provides

            that this is one of the options that a Judge

            has in sentencing a minor."

       DCFS timely appeals the guardianship order of the circuit

court and the court's denial of its motion to reconsider.

                                ANALYSIS

       We first note that neither K.D. nor the County challenges

DCFS's appeal of the circuit court's guardianship order.     "DCFS

has standing to appeal the portions of the court's orders


                                   7
No. 1-09-2481

pertaining to it because it had a sufficient direct, immediate

and substantial interest in the orders' terms.   The order

required DCFS to assume the responsibility of placing the minor[]

in an appropriate residential facility, and its compliance could

be enforced by the trial court's contempt power."   In re O.H.,

L.M., B.M., B.L., 329 Ill. App. 3d 254, 257-58, 768 N.E.2d 799

(2002).

     Also, we agree with the parties that whether the circuit

court had authority under the Act to appoint DCFS as K.D.'s

guardian on the basis of neglect where no neglect petition had

been first filed is subject to de novo review.   In re E.F., 324

Ill. App. 3d 174, 176, 754 N.E.2d 837 (2001) (when the scope of

the circuit court's authority under the Act is at issue, de novo

review applies); In re O.H., 329 Ill. App. 3d at 258 ("The

standard of review for the construction of a statute is de

novo.").

     DCFS presents two challenges to the circuit court's ruling:

(1) the circuit court erred in interpreting section 5-

710(1)(a)(iv) as providing subject matter jurisdiction for the

order it entered; and (2) the circuit court's interpretation

raises constitutional due process concerns vis-a-vis the parents

of minors similarly situated to K.D.   DCFS argues that the

juvenile court<s interpretation of section 5-710(1)(a)(iv) fails

to recognize that a neglect petition is "wholly distinct from,

and serves an entirely different purpose than, a delinquency


                                8
No. 1-09-2481

petition."   In the present case, K.D.'s parents only received

notice of the filing of delinquency petitions;3 no neglect

petition, which impinges upon parental rights, was ever filed.

DCFS argues a court has subject matter jurisdiction to make a

finding of neglect only when the procedural requirements set

forth in Article II of the Act are followed.      As support for this

contention, DCFS quotes the supreme court: "Proceedings under the

Act are initiated by the filing of a petition for adjudication of

wardship with the court pursuant to section 2-13 [of the Act]."

A.H., 195 Ill. 2d at 417 (citing 705 ILCS 405/2-13 (West 1998)).

DCFS contends that in the context of this case, section 2-13 of

the Act "explicitly" requires the filing of a neglect petition

and because no such petition was filed, the juvenile court lacked

subject matter jurisdiction to enter a DCFS guardianship order,

which rendered its order void.

     The County and K.D. filed separate briefs supporting the

juvenile court's authority to enter such an order, with all three

parties presenting oral argument.      K.D. notes that upon a finding

of delinquency under section 5-620 of the Act, a juvenile court

has the authority to determine whether the minor should be

adjudicated a ward of the court.       705 ILCS 405/5-620 (West 2008)

("Findings").   K.D. argues that the sentencing options available

under section 5-710(1)(a)(iv) of the Act with "respect to wards

of the court," explicitly authorize the court to place a minor,

     3
         K.D.'s mother was served by publication.

                                   9
No. 1-09-2481

15 years or older, for whom an independent basis of neglect

exists, in the guardianship of DCFS.    The court's decision to do

so in this case was proper, even in the absence of a neglect

petition.    In its brief, the County argues "DCFS has inserted a

requirement into 705 ILCS 405/5-710(1)(a)(iv) that simply does

not exist.    Despite DCFS's claims, there [is] no requirement that

a neglect petition be filed prior to K.D. being placed in DCFS

guardianship as part of his delinquency sentence."    Because the

County's arguments parallel K.D.'s, we do not address them

separately.

       The parties primarily rely on cases decided by the Third

District for their contrary positions: DCFS relies on In re E.F.,

324 Ill. App. 3d 174; K.D. relies on In re O.H., 329 Ill. App. 3d

254.    The two cases were authored by different justices; however,

each authoring justice was a member of the panel deciding the

other case.

                    Subject Matter Jurisdiction

       In E.F., two delinquency petitions were filed against the

minor, alleging "criminal damage to his father's property and

domestic battery against his stepmother."    In re E.F., 324 Ill.

App. 3d at 175.    His stepmother obtained an order of protection,

which barred the minor from returning to his father's home, where

he was residing.    After a finding of delinquency was entered, the

guardian ad litem urged the county to file a neglect petition to

address the temporary custody of the minor; the county urged the


                                 10
No. 1-09-2481

juvenile court to "sentence E.F. to DCFS due to the 'overriding

circumstances.' "     In re E.F., 324 Ill. App. 3d at 175.    "The

trial court found that E.F. was neglected [based on abandonment]

because the order of protection barred him from his father's

house.   The court then placed E.F. in the custody of DCFS."         In

re E.F., 324 Ill. App. 3d at 175.

     At the time of sentencing, section 5-710(1)(a)(iv) provided

that a delinquent minor may be " 'placed in the guardianship of

the Department of Children and Family Services, but only if the

delinquent minor is under 13 years of age.' "      (Emphasis added in

decision.)   In re E.F., 324 Ill. App. 3d at 176 (quoting 705 ILCS

405/5-710(1)(a)(iv) (West 2000)).      E.F. was 16 years of age at

the time of sentencing.    The Third District held the DCFS

guardianship order void.    "In the absence of a petition to

initiate custody proceedings, the trial court lacked jurisdiction

to enter a custody award.    A trial court may not exceed its

authority under the Act regardless of how beneficial or desirable

the result may be."    In re E.F., 324 Ill. App. 3d at 177.

     Relying on E.F., DCFS asserts that the circuit court below

was without subject matter jurisdiction to enter the DCFS

guardianship order regarding K.D., who was 16 years of age at the

time of sentencing, absent the filing of a neglect petition under

Article II of the Act.    DCFS asserts the court erred in

concluding that E.F. is no longer controlling based on the 2008

amendment to the section.    According to DCFS, the 2008 amendment


                                  11
No. 1-09-2481

made no substantive change to section 5-710(1)(a(iv), except to

raise the disqualifying age from 13 to 15.    Thus, DCFS argues,

the holding in E.F. remains good law as it relates to a minor age

16, making it binding on the circuit court in this case.    We

disagree on both counts.

                           Holding of E.F.

     Contrary to the position taken by DCFS, we do not read E.F.

to hold that the circuit court lacked subject matter jurisdiction

because of the absence of a neglect petition; rather, the absence

of a neglect petition merely confirmed that the circuit court did

not have subject matter jurisdiction to enter the guardianship

order.    "Subject matter jurisdiction refers to a court's power

both to adjudicate the general question involved and to grant the

particular relief requested."    In re A.H., 195 Ill. 2d at 415.

In actuality, the order appointing DCFS as guardian was void

because the sentencing statute did not apply to E.F., as he was

16 years of age.    The circuit court lacked authority to impose a

condition of probation not permitted by the version of section 5-

710(1)(a)(iv) in effect at the time.    "[T]he Act defines the

scope of alternatives available to the circuit courts."     In re

E.F., 324 Ill. App. 3d at 176.

     The 2001 version of section 5-710(1)(a)(iv) expressly

limited the circuit court's authority to impose DCFS guardianship

to a "delinquent minor *** under 13 years of age."     (Emphasis

added.)    705 ILCS 405/5-710(1)(a)(iv) (West 2000).   Had E.F. been


                                 12
No. 1-09-2481

under the age of 13, no neglect petition would have been required

for the circuit court to grant the particular relief it did.

E.F. turned on the age of the minor involved, not the absence of

a neglect petition.   "[T]he trial court lacked jurisdiction to

enter a custody award."   (Emphasis added.)    In re E.F., 324 Ill.

App. 3d at 177.

     It follows that in 2001, when E.F. was decided, a custody

award granting DCFS guardianship over minors 13 or older could

only follow an adjudication of a neglect petition under Article

II, the filing of which E.F.'s guardian ad litem urged.     In re

E.F., 324 Ill. App. 3d at 175.   "The [juvenile] court *** has

only the subject matter jurisdiction accorded to it by the

statute and '[a]ny action taken by the circuit court that exceeds

its jurisdiction is void and may be attacked at any time.' "       In

re A.H., 195 Ill. 2d at 416 (quoting In re Estate of Gebis, 186

Ill. 2d 188, 193, 710 N.E.2d 385 (1999)).     As the E.F. court

noted, it was a matter of legislative discretion "to limit

courts' ability to award custody of certain minors to DCFS under

the Act."   In re E.F., 324 Ill. App. 3d at 176.

     We agree with the circuit court below: the holding in E.F.

does not extend beyond the terms of section 5-710(1)(a)(iv) as it

existed at the time the case was decided.     The version of the

section in existence in 2001 only permitted the circuit court to

enter a DCFS guardianship order for minors under the age of 13.

Likewise, as DCFS acknowledges here, the 2008 version of section


                                 13
No. 1-09-2481

5-710(1)(a)(iv) unquestionably permits the circuit court to enter

such an order if the delinquent minor is under 15 years of age.

705 ILCS 405/5-710(1)(a)(iv) (West 2008).

     The issue remains before us whether section 5-710(1)(a)(iv),

as amended in 2008, authorizes the circuit court to enter a DCFS

guardianship order for K.D., who was 16 at the time.    The grant

of authority to the circuit court to act in accordance with the

provision of the Act "is purely statutory and the proceedings and

remedies provided by the Act are part of a comprehensive

statutory scheme."   In re A.H., 195 Ill. 2d at 416.    While the

issue may more accurately be framed as whether the amended

section created a "justiciable matter" pertaining to a DCFS

guardianship order for a minor 15 years or older arising in a

delinquency proceeding, we continue our analysis with the term

"subject matter jurisdiction."   See In re M.W., 232 Ill. 2d 408,

421-22, 905 N.E.2d 757 (2009) ("once such a matter is created [by

legislation], the circuit courts enjoy ' "original jurisdiction

of all justiciable matters" ' " (quoting In re A.H., 195 Ill. 2d

at 415, quoting Ill. Const. 1970, art. VI, §9)).

                 Amended Section 5-710(1)(a)(iv)

     In June 2008, the legislature amended section 5-

710(1)(a)(iv) to permit a delinquent minor to be

          "placed in the guardianship of [DCFS], but

          only if the delinquent minor is under 15

          years of age or, pursuant to Article II of


                                 14
No. 1-09-2481

           this Act, a minor for whom an independent

           basis of abuse, neglect, or dependency

           exists.   An independent basis exists when the

           allegations or adjudication of abuse,

           neglect, or dependency do not arise from the

           same facts, incident, or circumstances which

           give rise to a charge or adjudication of

           delinquency[.]" (Emphasis added.) 705 ILCS

           405/5-710(1)(a)(iv) (West 2008).

The circuit court concluded that the added language gave it

authority to enter the DCFS guardianship order on the basis of an

independent finding of neglect made in the course of a sentencing

hearing.

     In its reply brief, DCFS contends the 2008 amendment did not

broaden the circuit court's discretion regarding a sentencing

disposition of a delinquent minor above the disqualifying age;

rather, the amendment merely codified the holding in E.F.: "[T]he

amendment mandates the filing of a neglect petition, just as was

required in E.F."    We are unpersuaded by the interpretation

offered by DCFS.

     DCFS fails to provide a reason the legislature acted to

"codify" the purported holding in E.F. when the court, consistent

with the Act, found subject matter jurisdiction lacking for the

entry of the DCFS guardianship order for a minor 16 years of age.

The purpose behind the 2008 amendment offered by DCFS is


                                 15
No. 1-09-2481

doubtful, especially when E.F. was decided nearly seven years

earlier.   It also strikes us as odd that the legislature would

seek to "codify" the holding in E.F. regarding minors of a

certain age, without the use of a simple and unambiguous phrase

to the effect that "a neglect petition first be filed."   That

"this power [to appoint DCFS as guardian of a minor age 15 or

older] was suggested elsewhere in the act," as DCFS has argued,

is no basis to interpret the language added to section 5-

710(1)(a)(iv) in 2008 as without significance.

     DCFS nevertheless insists that the 2008 amendment "evidenced

the legislature's intent that the procedures in Article II -

including the filing of a neglect petition - must be complied

with before a court can place a delinquent minor 15 or older in

the guardianship of the Department on the basis of neglect."     As

K.D. and the County argue, to find such a requirement, we must

read the phrase "pursuant to Article II" to mean something well

beyond the words themselves.   The phrase must be interpreted to

mean that the procedural requirements set forth in Article II for

the filing of a neglect petition must be followed, including

providing proper notice of a neglect petition to the parents of a

delinquent minor 15 years or older, before a DCFS guardianship

order may be entered.

     K.D. and the County contend that the phrase "pursuant to

Article II" should be read as providing a point of reference, not

as providing a directive.   The phrase should be read as part of


                                16
No. 1-09-2481

the entire clause in section 5-710(1)(a)(iv) and not in

isolation.   The clause read in its entirety provides an

alternative to a neglect proceeding under Article II to place an

older minor in the guardianship of DCFS.    The alternative clause

incorporates the "independent basis" standard contained in

section 405/2-10(2) in Article II of the Act (705 ILCS 405/2-

10(2) (West 2008)).   This interpretation is consistent with the

plain and ordinary meaning of the language in the section.   See

In re R.L.S., 218 Ill. 2d 428, 433, 844 N.E.2d 22 (2006) ("When

the statutory language is clear, it must be given effect without

resort to other tools of interpretation.").

     We agree with K.D. and the County that the reference to

"pursuant to Article II" in section 5-710(1)(a)(iv) cannot be

read as imposing the procedural requirements of Article II on the

juvenile court before a DCFS guardianship order may be entered in

the course of a sentencing hearing regarding a delinquent and

neglected minor at least 15 years of age.   We agree that if the

legislature meant to require that a neglect petition be filed

under the procedural requirements of Article II, it could easily

and simply have said so.   See State of Illinois, Secretary of

State v. Mikusch, 138 Ill. 2d 242, 252, 562 N.E.2d 168 (1990)

("When the import of the original statutory language is clear,

the court has declined to view an amendment as simply clarifying

the legislature's intention.").    "Generally, a material change in

the language of an unambiguous statute creates a presumption ***


                                  17
No. 1-09-2481

that the amendment was intended to change the law."     Mikusch, 138

Ill. 2d at 252.

     The 2008 amendment constituted a material change in the

language of section 5-710(1)(a)(iv), which supports the circuit

court's conclusion that the amendment changed more than simply

the disqualifying age in the section.   The interpretation

supporting a change in the law offered by K.D. and the County is

also consistent with the holding in O.H., a decision each cites

as supporting the circuit court's order in this case.

     In O.H., the Third District consolidated four cases

involving juveniles: "the [juvenile] court appointed DCFS as

guardian, sentenced the minor to a term of probation, and

directed DCFS to place each in a residential facility."      In re

O.H., 329 Ill. App. 3d at 256.   DCFS challenged the orders,

contending the circuit court "was without jurisdiction to require

such placements."   In re O.H., 329 Ill. App. 3d at 256.     E.F. was

not cited in O.H., though the author of E.F. joined in the

decision in O.H. as the author of O.H. had joined in the decision

in E.F.   While the age of each of the four minors in O.H. was

never stated, we can only surmise that each was under the age of

13, thereby making unnecessary a cite or discussion of E.F.      With

each of the minors in O.H. under the age of 13, the guardianship

order fell within the express terms of section 5-710(1)(a)(iv) in

existence at the time for the entry of a DCFS guardianship order

without the need to file a neglect petition under Article II.


                                 18
No. 1-09-2481

     Based on our surmise, the argument DCFS urged in O.H. is

much the same argument it presents here.   DCFS took the position

that the preamended section 5-710(1)(a)(iv) required the filing

of a neglect petition even for minors under the age of 13,

although the clear and plain language of the section provided

otherwise.   DCFS contends before us that the 2008 amendment to

the section changed nothing following the decision in E.F.,

except to increase the disqualifying age to 15.

     As we held above, the lack of subject matter jurisdiction

holding in E.F. did not turn on the absence of a neglect

petition, but on the express provision in section 5-705(1)(a)(iv)

then in existence, which precluded the juvenile court from

entering a DCFS guardianship order, in the course of a sentencing

hearing, for 16-year-old E.F.   At the time E.F. was decided, a

custody order regarding a minor age 13 or older could only be

entered upon the filing of a neglect petition under Article II of

the Act.   Thus, based on the actual holding in E.F., the circuit

court lacked subject matter jurisdiction because E.F.'s age was

above the disqualifying age in the 2001 version of section 5-

710(1)(a)(iv), which limited the "courts' ability to award

custody of certain minors to DCFS under the Act."   In re E.F.,

324 Ill. App. 3d at 176.

     The clear import of E.F. and the holding in O.H. render

unavailing the claim by DCFS that A.H. requires a neglect

petition under Article II to vest jurisdiction on the circuit


                                19
No. 1-09-2481
court before a guardianship order may be entered.   In E.F., had

the minor been under age 13 at the time of sentencing, no neglect

petition would have been necessary; in O.H., the absence of

neglect petitions regarding any of the four minors did not

deprive the circuit court of subject matter jurisdiction to enter

the guardianship orders because "a different section of the

Juvenile Court Act dealing with minors who have been adjudicated

delinquent [was involved]."    In re O.H., 329 Ill. App. 3d at 260-
61.

      Contrary to DCFS's broad reading of A.H., it does not stand

for the proposition that a neglect petition must be filed to vest

a court with subject matter jurisdiction before it may enter a

DCFS guardianship order.   The language in A.H. quoted by DCFS,

that "Proceedings under the Act are initiated by the filing of a

petition for adjudication of wardship with the court pursuant to

section 2-13 [of the Act]" (A.H., 195 Ill. 2d at 417), cannot

supplant the authority granted the circuit court in the 2008

version of section 5-710(1)(a)(iv).

      We agree with K.D. and the County that DCFS in this case

seeks to "insert a requirement into 705 ILCS 405/5-710(1)(a)(iv)

that simply does not exist."   The absence of a neglect petition

in the proceeding below did not deprive the circuit court of

subject matter jurisdiction to enter the DCFS guardianship order

involving K.D.   As the supreme court noted in a different

context, it is the best interests of the minor that drives the


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No. 1-09-2481
circuit court's determination under the Act.    In re A.H., 195

Ill. 2d at 421 ("the court must make a best interests

determination, though not of the kind required at the temporary

custody hearing").

       We hold the 2008 amendment vested discretion in the circuit

court to place a delinquent minor, age 15 or older, in the

guardianship of DCFS when a finding of neglect, independent of

the facts underlying the delinquency petition, is supported by
the record.    A circuit court need not look to Article II before

acting in the best interests of a delinquent minor, already a

ward of the court, in deciding sentencing conditions.    Contrary

to DCFS's claim, as evidenced by the instant case, as a child

approaches adulthood, the parents of a minor, age 15 or older,

may be less inclined to exercise parental control.    Notice beyond

that provided by the filing of a delinquency petition is not

statutorily required for minors under the age of 15; we see no

reason to require more when the minor reaches or is above that

age.

       The circuit court complied with the provisions of section 5-

705(1)(a)(iv) in finding an independent basis of neglect outside

the context of the filing of the neglect petition and acted

within its authority in entering a DCFS guardianship order.

                             Due Process

       DCFS's final attempt to overturn the guardianship order

entered by the circuit court below rests on its contention, as


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No. 1-09-2481
framed in its reply brief, that to uphold the DCFS guardianship

order in this case would trample upon the due process rights of

parents of minors similarly situated to K.D: "The strained

reading of section 5-710(1)(a)(iv) proposed by K.D. and the

People *** would raise serious constitutional concerns that the

legislature surely did not intend."

     No one questions that a minor's parents have a

constitutional due process right to receive adequate notice of a
juvenile proceeding based on the United States Supreme Court

decision of In re Gault, 387 U.S. 1, 33-34 (1967).    Nor does DCFS

question that adequate notice of the delinquency proceedings was

provided to K.D.'s parents.   Nonetheless, DCFS suggests that the

absence of a separate or second notice to the parents, before a

finding of an independent basis for neglect may be made, runs

afoul of due process.

     E.F. and O.H. read together make clear that DCFS may no

longer dispute that a minor of below a certain age, made a ward

of the court in a delinquency proceeding, may be placed in the

guardianship of DCFS without the filing of a neglect petition.

Had the minor in E.F. been under the age of 13, no neglect

petition would have been required to impose a DCFS guardianship

order under the express terms of section 5-710(1)(a)(iv) in

existence in 2001; that is precisely the holding in O.H.     Thus,

the parents of such a minor would receive no separate notice of a

neglect proceeding under Article II before a DCFS guardianship


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No. 1-09-2481
order could be imposed in a delinquency proceeding.    DCFS does

not claim that a neglect finding under those circumstances "would

raise serious constitutional concerns."

     DCFS fails to tell us why under its analysis, a

constitutional claim arises when the delinquent minor reaches the

age of 15, under the 2008 version of section 5-710(1)(a)(iv), but

not before.   We are unpersuaded that a second notice of a

proceeding involving an allegation of parental neglect is
essential to pass constitutional muster.   In the absence of any

supporting authority, we find no reason to address further the

contention by DCFS that a different constitutional rule applies

to minors at least 15 years of age than applies to minors under

that age.

                             CONCLUSION

     We affirm the circuit court's order placing the delinquent

16-year-old minor K.D. in the guardianship of DCFS, even though a

neglect petition regarding K.D. was never filed.   We hold section

5-710(1)(a)(iv) of the Act, as amended in 2008, vests the circuit

court with subject matter jurisdiction to place a minor in the

guardianship of DCFS on a finding of neglect when the neglect

finding is based on facts independent of those underlying the

delinquency petition.   The social investigative report submitted

to the circuit court found that neither parent was able to care

for K.D.    The circuit court properly found K.D. to be neglected

and placed him in the guardianship of DCFS as a condition of his


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No. 1-09-2481
probation.

     Affirmed.




     JUSTICE CAHILL, dissenting

                                  24
No. 1-09-2481

       I respectfully dissent. There is no question that the various requirements of the

Juvenile Court Act can appear to be counter-intuitive and not in the best interests of the child

when viewed from the trial court trenches. That is what happened here. An able,

thoughtful trial judge believed the DCFS interpretation of the Act impeded his ability to act

in the best interests of the child before him. He proceeded to interpret the Act in such a way

that allowed him to enter a finding of neglect without the parents being notified or made a party

to the proceeding. The facts of this case may be the exception that should be allowed by the rule,

but the notice and hearing requirements of the statute are rooted in parental rights that have been

held to be fundamental and of Constitutional dimension. It is for the Legislature to limit them,

and the limitation should be clear and beyond dispute. That is the opinion of our Attorney

General in this case, arguing on behalf of DCFS. I agree, and would reverse.




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