                                             2018 IL App (3d) 170009

                                Opinion filed March 21, 2018
     _____________________________________________________________________________

                                                    IN THE

                                    APPELLATE COURT OF ILLINOIS

                                               THIRD DISTRICT

                                                      2018

     In re M.T.,                                        )
                                                        )      Appeal from the Circuit Court
            a Minor                                     )      of the 10th Judicial Circuit,
                                                        )       Peoria County, Illinois.
     (The People of the State of Illinois,              )
                                                        )
            Petitioner-Appellee,                        )      Appeal No. 3-17-0009
                                                        )      Circuit No. 16-JA-132
            v. 	                                        )

                                                        )

     Malcolm T.,                                        )      The Honorable

                                                        )      Kirk D. Schoenbein,

            Respondent-Appellant).	                     )      Judge, presiding.
                                                        )

     _____________________________________________________________________________

            JUSTICE McDADE delivered the judgment of the court, with opinion.
            Presiding Justice Carter and Justice Wright concurred in the judgment and opinion.

     _____________________________________________________________________________

                                                   OPINION


¶1          The State filed a juvenile petition against M.T.’s mother and respondent father claiming

     that M.T. was neglected. Respondent filed a motion to strike the allegations against him, and the

     State dismissed the allegations. Subsequently, the court adjudicated M.T. neglected, determining

     that the mother contributed to the injurious environment but respondent did not. At the
     dispositional hearing, the court determined that M.T.’s mother was unfit and that respondent was

     fit. However, the court adjudicated M.T. a ward of the court and appointed the Department of

     Children and Family Services (DCFS) as guardian with the right to place. Respondent appeals,

     arguing that the appointment was improper. We vacate the trial court’s dispositional order and

     remand for a new dispositional hearing.

¶2                                                FACTS

¶3           In May 2016, the State filed a juvenile petition, alleging that the minor M.T., born May

     16, 2016, was neglected and requesting that M.T. be adjudicated a ward of the court. The petition

     stated that M.T.’s mother Jimeka R. was previously found unfit and that Jimeka reported to

     DCFS that M.T.’s putative father, respondent Malcolm T., was partying all the time and using

     cannabis. A few days later, respondent filed a voluntary acknowledgment of paternity. The trial

     court accepted the paternity and held that respondent was M.T.’s legal father. The court also

     ordered temporary custody to DCFS and allowed DCFS to place M.T. with respondent if it found

     placement was appropriate.

¶4           In June, respondent filed an answer to the petition and moved to strike the allegations

     against him. The State dismissed the allegations against respondent but the allegations against

     Jimeka remained in the petition. In August 2016, an adjudication hearing was held in which the

     trial court found that M.T. was neglected as a result of her injurious environment but respondent

     did not contribute to it.

¶5           A subsequent dispositional hearing was held on the same day. At the hearing, Lauren

     Grunwald, a DCFS agent, testified that M.T. had been with her father since she was born. She

     visited respondent’s home and believed that it was appropriate and that there were no safety

     concerns. M.T. appeared attached to respondent, and they had a strong bond. She believed that


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       respondent was able to take care of M.T. and that respondent had family for help and support.

       However, she opined that DCFS should be granted guardianship of M.T. because respondent’s

       drug test was positive.

¶6            Respondent testified that he previously smoked cannabis heavily and that he had last used

       it about a day before M.T. came home from the hospital but had since quit. Respondent was born

       with 6/4 vision, was deemed legally blind, and was receiving disability. He had broken his

       eyeglasses and was in the process of getting a new pair. He may need surgery on his eyes and

       was willing to invest in his eye care. If his vision gets better, he would qualify for a driver’s

       license.

¶7            The State asked the court to make M.T. a ward of the court, to appoint DCFS as guardian,

       to find M.T.’s mother unfit, to find respondent was fit, and to place M.T. with respondent. The

       State urged that respondent have a “completely clean” drug test before regaining guardianship of

       M.T. Respondent argued that he should have guardianship of M.T. The guardian ad litem (GAL)

       opined that it was in the best interest of M.T. if she was made ward of the court and DCFS was

       appointed guardian. The GAL believed DCFS should be guardian because respondent had

       previously tested positive for marijuana and had been “lackadaisical” about improving his vision.

¶ 8	          The trial court found that respondent was a fit parent but held M.T.’s mother was unfit. It

       further determined that it was in the best interest of M.T. to be ward of the court and appointed

       DCFS as guardian with the right to place, stating “We do have a father who’s very new at it and

       does have a health issue that needs to be addressed. And then also, the Court needs some

       confidence that the marijuana smoking is conquered. So I think it’s in the best interest that the

       guardian initially be DCFS.” It ordered respondent to complete a service plan to “correct the

       conditions which caused the child to be in foster care.” The court explained that the goal was “to


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       make a transition of the child into [respondent’s] care.” The court further stated: “And given that

       you’re a new parent, I want a period of time where I can have some confidence that there is no

       problem. It appears that that’s the way it’s going to be. So I fully expect that if everything goes

       well, the next court date we can close this case out and have you as the guardian.” Respondent

       appealed.

¶9             In December, a permanency hearing was held. In the permanency report, Grunwald stated

       that M.T. was residing with respondent and that he was providing safe housing. A November 14,

       2016, status report showed that M.T. had lived with respondent from May 2016 to November

       2016.

¶ 10                                               ANALYSIS

¶ 11           Respondent argues that the trial court improperly appointed DCFS as guardian with the

       right to place despite its determination that respondent was a fit parent in accordance with

       section 2-27 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-27 (West 2016)).

       Respondent contends that awarding DCFS guardianship with the right to place commits the child

       to DCFS and that section 2-27(1) requires the court to make a finding of unfitness before such

       commitment occurs.

¶ 12           Section 2-27 governs placement of a minor after he has been adjudicated a ward of the

       court. In particular, section 2-27(1) states:

                       “(1) If the court determines and puts in writing the factual basis

               supporting the determination of whether the parents, guardian, or legal

               custodian of a minor adjudged a ward of the court are unfit or are unable,

               for some reason other than financial circumstances alone, to care for,

               protect, train or discipline the minor or are unwilling to do so, and that the


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        health, safety, and best interest of the minor will be jeopardized if the

        minor remains in the custody of his or her parents, guardian or custodian,

        the court may at this hearing and at any later point:

                           (a) place the minor in the custody of a suitable relative or

                other person as legal custodian or guardian;

                           (a-5) with the approval of the Department of Children and

                Family Services, place the minor in the subsidized guardianship of

                a suitable relative or other person as legal guardian; ‘subsidized

                guardianship’ means a private guardianship arrangement for

                children for whom the permanency goals of return home and

                adoption have been ruled out and who meet the qualifications for

                subsidized guardianship as defined by the Department of Children

                and Family Services in administrative rules;

                           (b) place the minor under the guardianship of a probation

                officer;

                           (c) commit the minor to an agency for care or placement,

                except an institution under the authority of the Department of

                Corrections or of the Department of Children and Family Services;

                           (d) on and after the effective date of this amendatory Act of

                the 98th General Assembly and before January 1, 2017,[1] commit

                the minor to the Department of Children and Family Services for



        1
         The dispositional hearing in this case was held on August 10, 2016, which was after the January
1, 2015, effective date of the amendatory act of the 98th General Assembly and before January 1, 2017.
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                      care and service ***.” (Emphasis added.) 705 ILCS 405/2-27(1)

                      (West 2016).

¶ 13          Respondent cites In re M.M., 2016 IL 119932, to support his argument that the court

       must find him unfit before it grants guardianship to DCFS pursuant to section 2-27(1). In M.M.,

       the trial court granted DCFS custody and guardianship of the minors at the end of a dispositional

       hearing although the court found respondent was a fit parent and it did not indicate that

       respondent was unable or unwilling to care for the minors. Id. ¶ 10. On appeal, respondent

       argued that the trial court erred when it granted DCFS custody and guardianship of the minors

       without a finding of unfitness, and this court agreed, reversing the trial court’s decision and

       remanding the cause for explicit findings in accordance with section 2-27. Id. ¶ 11. Affirming

       this court’s decision, our supreme court concluded that section 2-27(1) “does not authorize

       placing a ward of the court with a third party absent a finding of parental unfitness, inability, or

       unwillingness to care for the minor.” Id. ¶ 31.

¶ 14          The State alleges that M.T. was not committed to DCFS. Rather, respondent retained

       custody of M.T. because M.T. continued to live with respondent after the dispositional hearing.

       The State claims that section 2-23(1)(a)(1) of the Act (705 ILCS 405/2-23(1)(a)(1) (West 2016))

       applies because DCFS never obtained custody of M.T., and therefore, the court was not required

       to make a finding of unfitness before awarding DCFS guardianship with the right to place.

¶ 15          Section 2-23 allows the court to order different types of dispositions when a minor is

       adjudicated a ward of the court. Section 2-23(1)(a)(1) states:

                      “(1) The following kinds of orders of disposition may be made in

              respect of wards of the court:




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                               (a) A minor under 18 years of age found to be neglected or

                       abused under Section 2-3 or dependent under Section 2-4 may be

                       (1) continued in the custody of his or her parents, guardian or

                       legal custodian; (2) placed in accordance with Section 2-27; (3)

                       restored to the custody of the parent, parents, guardian, or legal

                       custodian, provided the court shall order the parent, parents,

                       guardian, or legal custodian to cooperate with the Department of

                       Children and Family Services and comply with the terms of an

                       after-care plan or risk the loss of custody of the child and the

                       possible termination of their parental rights; or (4) ordered partially

                       or completely emancipated in accordance with the provisions of

                       the Emancipation of Minors Act.” (Emphasis added.) 705 ILCS

                       405/2-23(1)(a) (West 2016).

¶ 16	          The State cites two decisions, In re E.L., 353 Ill. App. 3d 894, 896 (2004), and In re

        M.P., 408 Ill. App. 3d 1070 (2011), for the proposition that a trial court’s appointment of

        guardianship to DCFS is proper under section 2-23(1)(a)(1) when custody is retained with the

        parent. In E.L., the State filed a juvenile petition arguing that two minors were neglected. E.L.,

        353 Ill. App. 3d at 895. The trial court found that the minors were in an injurious environment

        and adjudicated them neglected. Id. at 896. At the dispositional hearing, the court found

        respondent mother fit but reserved a ruling on unfitness. Id. It appointed DCFS as guardian but

        ordered that the children remain with the respondent. Id. The respondent appealed the decision,

        claiming that the trial court abused its discretion when it appointed DCFS as guardian without

        making a finding of unfitness in violation of section 2-27(1). Id. at 897. This court noted that


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       section 2-27 was not applicable to the case because the section requires a finding of unfitness

       before “a minor may be placed with DCFS for care and services” whereas the issue at hand

       involved the appointment of DCFS as guardian while the parent retained custody of the minors.

       (Emphasis in original.) Id. at 898. We determined that section 2-23(1)(a)(1) was applicable

       because it addressed the issuance of dispositional orders continuing the minors in the custody of

       their parents. Id. Section 2-23(1)(a)(1) does not require a finding of unfitness; therefore, this

       court determined the trial court’s ruling was not an abuse of discretion. Id.

¶ 17          In M.P., the State filed a juvenile petition arguing the minors were neglected due to an

       injurious environment, and the court adjudicated the minors neglected. M.P., 408 Ill. App. 3d at

       1071-72. At the dispositional hearing, the court found that respondent was fit and “allowed her to

       retain custody of the minors, but made the minors wards of the court and appointed DCFS as

       their guardian.” Id. at 1073. This court found that the trial court’s decision to divide guardianship

       to DCFS and custody to respondent was proper under section 2-23(1)(a)(1). M.P., 408 Ill. App.

       3d at 1074.

¶ 18          Under section 2-27(1) “both parents must be adjudged unfit, unable, or unwilling before

       placement with DFCS is authorized because biological parents have a superior right to custody.”

       In re Ta. A., 384 Ill. App. 3d 303, 307 (2008). However, an unfitness determination is not

       required under section 2-23(1)(a)(1) because the parent retains custody of the minor. In all the

       cases provided above, the trial court made clear in its findings which party had custody and/or

       guardianship of the minors. Here, the record shows that the trial court found respondent fit but

       appointed DCFS guardianship with the right to place. The record also reveals that M.T.

       continued to reside with respondent throughout, and at least three months after, the court

       proceedings. Because DCFS was appointed guardian but defendant retained physical possession


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       of M.T., we must determine who had custody of M.T. in order to apply the proper statutory law.

       “ ‘On review, the trial court’s determination will be reversed only if the findings of fact are

       against the manifest weight of the evidence or if the trial court committed an abuse of discretion

       by selecting an inappropriate dispositional order.’ ” In re April C., 326 Ill. App. 3d 245, 257

       (2001) (quoting In re T.B., 215 Ill. App. 3d 1059, 1062 (1991)).

¶ 19          We believe section 2-27(1) applies in this case. Once again, the trial court granted DCFS

       guardianship with the right to place. There is no case law or statutory definition that addresses

       the meaning of “right to place.” The Act defines “[g]uardianship of the person” as

              “the duty and authority to act in the best interests of the minor, subject to residual

              parental rights and responsibilities, to make important decisions in matters having a

              permanent effect on the life and development of the minor and to be concerned with his

              or her general welfare. It includes but is not necessarily limited to:

                                                           ***

                              (c) the rights and responsibilities of legal custody except where legal

                     custody has been vested in another person or agency.” (Emphases added.) 705

                     ILCS 405/1-3(8)(c) (West 2016).

       Legal custody is vested by court order. See 705 ILCS 405/1-3(9) (West 2016) (“ ‘Legal custody’

       means the relationship created by an order of court in the best interests of the minor which

       imposes on the custodian the responsibility of physical possession of the minor and the duty to

       protect, train and discipline him and to provide him with food, shelter, education and ordinary

       medical care, except as these are limited by residual parental rights and responsibilities and the

       rights and responsibilities of the guardian of the person, if any.” (Emphasis added.)).




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¶ 20          Here, the trial court did not grant legal custody to either party, and therefore, DCFS had

       the rights and responsibilities of legal custody of M.T. Before respondent loses his superior right

       to custody, the trial court must show that respondent was unfit, unable, or unwilling to care for

       M.T. under section 2-27(1). Instead, the court found respondent fit and appointed DCFS as

       guardian and, essentially, custodian of M.T. We also note that the court never made a

       determination that respondent was unable or unwilling to care for M.T. We determine that the

       trial court abused its discretion when it appointed DCFS as guardian with the right to place. We

       vacate the trial court’s dispositional order and remand this cause for a new dispositional hearing.

¶ 21                                            CONCLUSION

¶ 22          For the foregoing reasons, we vacate the trial court’s dispositional order and remand this

       cause for further proceedings.

¶ 23          Order vacated; cause remanded.




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