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In re A.M.

Case Date: 08/16/2001
Court: 2nd District Appellate
Docket No: 2-00-1197 Rel

August 16, 2001

No. 2--00--1197

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

In re A.M., a Minor




(The People of the State
of Illinois, Petitioner-
Appellee, v. M.M., Respondent-
Appellant).		 )
)
)
)
)
)
)
)
)		 Appeal from the Circuit Court
of Kane County.

No. 97--JA--76


Honorable
Judith M. Brawka, 
Judge, Presiding.

JUSTICE BOWMAN delivered the opinion of the court:

Respondent-mother, M.M., appeals from the trial court'sSeptember 11, 2000, order changing the permanency goal for herchild, A.M., from return home to substitute care, pending a courtdetermination on the termination of respondent's parental rights. The court had determined that respondent's principal problem washer substance abuse, which had led to criminal involvement and theneglect of her minor son, and that respondent had made no progressor reasonable efforts in the return home of her child. The childhad been in the protective custody of the Illinois Department ofChildren and Family Services since October 29, 1997.

On appeal, respondent contends that (1) the trial court'swritten order failed to comply with the statutory requirementsgoverning permanency hearings, and (2) the trial court's findingthat the appropriate permanency goal for the minor was substitutecare, pending a court determination on termination of parentalrights, was against the manifest weight of the evidence.

The State has filed a motion to dismiss this appeal, which weordered taken with the case. In its motion the State argues thatthis court lacks the jurisdiction to consider the appeal becausethe statutory provision purporting to make any order entered in apermanency hearing immediately appealable is unconstitutional. Weagree.

Respondent bases this court's jurisdiction to hear her appealon section 2--28(3) of the Juvenile Court Act of 1987 (705 ILCS405/2--28(3) (West 1998)), which provides in pertinent part:

"Any order entered pursuant to this subsection *** shallbe immediately appealable as a matter of right under SupremeCourt Rule 304(b)(1)."

However, both the Fourth District (In re C.B., 322 Ill. App. 3d1011 (2001)) and the Fifth District (In re D.D.H., 319 Ill. App. 3d989 (2001)) of this court have found that this provision enablingan appeal of a permanency order is invalid because it constitutesan unconstitutional violation of the separation-of-powers clause ofour state constitution (Ill. Const. 1970, art. VI,