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In re E.F.

Case Date: 08/16/2001
Court: 3rd District Appellate
Docket No: 3-00-0641 Rel

August 16, 2001

No. 3--00--0641

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

In re E.F., a minor.
       (The People of the State
       of Illinois,

            Petitioner-Appellee,

            v.

       The Department of
       Children and Family
       Services and D. Jean
       Ortega-Piron,
       Guardianship Adm'r of
       the Department of
       Children and Family
       Services,

            Respondents-
            Appellants).

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)		 Appeal from the Circuit Court
of the 12th Judicial Circuit
Will County, Illinois



No. 99--JD--189









Honorable
Barbara J. Badger
Judge, Presiding.

JUSTICE LYTTON delivered the opinion of the court:

Sixteen-year-old E.F. was adjudicated delinquent and sentencedto the custody of the Department of Children and Family Services(DCFS). We reverse and remand for a new sentencing hearing,finding that the trial court lacked jurisdiction to place him withDCFS.

FACTS

The Will County State's Attorney filed two delinquencypetitions against E.F., alleging that the 16-year-old minorcommitted criminal damage to his father's property and domesticbattery against his stepmother. E.F. had lived with his mother formost of his life, but she had sent him to stay with his father dueto his severe behavioral problems. His stepmother subsequentlyobtained an order of protection preventing E.F. from returning tothe family home. After a trial, E.F. was adjudicated delinquentbased on the charges in the delinquency petitions.

At the sentencing hearing on the delinquency charges, E.F.'sguardian ad litem suggested that the county file a neglectpetition; the county, on the other hand, recommended that the courtsentence E.F. to DCFS due to the "overriding circumstances." Thetrial court found that E.F. was neglected because the order ofprotection barred him from his father's house. The court thenplaced E.F. in the custody of DCFS. DCFS and E.F.'s father filedmotions to vacate the order, which were denied. DCFS appeals; wereverse and remand for a new sentencing hearing.


DISCUSSION

DCFS argues that in a pending delinquency petition the trialcourt lacks jurisdiction under the Juvenile Court Act of 1987 (Act)(705 ILCS 405/1--1 et seq. (West 2000)) sentence E.F. to DCFScustody.

The county maintains that the trial court had the necessaryauthority because section 2--10(2) of the Act (705 ILCS 405/2--10(2)(West 2000)) allows DCFS to take custody of any minor found to beneglected under section 2--3(1)(a) (705 ILCS 405/2--3(1)(a) (West2000)). The Act's definition of "a neglected minor" includes one"who is abandoned by his or her parents." 705 ILCS 405/2--3(1)(a)(West 2000). Since the trial court found that E.F. was abandonedby his father because the order of protection prevented him fromreturning home, the county argues that the court had the authorityto place him with DCFS as a neglected minor under section 2--10(2)(705 ILCS 405/2--10(2) (West 2000)).

Because this issue concerns the scope of the court's authorityunder the Act, we will review it de novo. In re S.B., 305 Ill.App. 3d 813, 816-17, 713 N.E.2d 750, 752 (1999).

Section 5--710(1)(a)(iv) of the Act states:

"(1) The following kinds of sentencing orders may bemade in respect of wards of the court:

(a) Except as provided in Sections 5--805, 5--810,5--815, a minor who is found guilty under Section 5--620may be:

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(iv) placed in the guardianship of theDepartment of Children and Family Services, butonly if the delinquent minor is under 13 years ofage." (Emphasis added.) 705 ILCS405/5--710(1)(a)(iv) (West 2000).

This court has previously found that the Act defines the scopeof alternatives available to the circuit courts. In re C.M., 282 Ill. App. 3d 990, 994, 669N.E.2d 707, 710 (1996). Thelegislature's decision to limit courts' ability to award custody ofcertain minors to DCFS under the Act was a valid exercise of itsdiscretion. In re C.M., 282 Ill. App. 3d at 995, 669 N.E.2d at711. A court's jurisdiction to remove a child from a parent's homebased on a finding of neglect is "purely statutory and theproceedings and remedies provided by the Act are part of acomprehensive statutory scheme." In re A.H., 195 Ill. 2d 408, 415-16, 748 N.E.2d 183, 188-89 (2001). Thus, we are bound by the clearlanguage of the Act.

In A.H., our supreme court reviewed the explicit statutorysteps for awarding temporary custody of a child under section 2--10of the Act. "Proceedings under the Act are initiated by the filingof a petition for adjudication of wardship with the court pursuantto section 2--13. 705 ILCS 405/2--13 (West 1998)." In re A.H., 195Ill. 2d at 417, 748 N.E.2d at 189. The court noted that "apetition is required for a temporary custody hearing and to beginthe entire adjudicatory process." In re A.H., 195 Ill. 2d at 424,748 N.E.2d at 193.

Here, no neglect petition was filed under section 2--10(2)prior to the entry of the trial court's custody order. At thesentencing hearing on the delinquency charges filed against E.F.,the county orally requested that the court "sentence" E.F. to thecustody of DCFS. In the absence of a petition to initiate custodyproceedings, the trial court lacked jurisdiction to enter a custodyaward. A trial court may not exceed its authority under the Actregardless of how beneficial or desirable the result may be. In reC.M., 282 Ill. App. 3d at 996, 669 N.E.2d at 711-12. Thus, thetrial court's order awarding custody of E.F. to DCFS is void. SeeIn re A.H., 195 Ill. 2d at 416, 748 N.E.2d at 189.

Since we find that the trial court's order was void becausethe court lacked subject matter jurisdiction over the custody ofE.F., we need not address the other issues raised on appeal.

CONCLUSION

For the reasons stated, the judgment of the circuit court ofWill County is reversed, and the cause is remanded for furtherproceedings.

Reversed and remanded.

McDADE and SLATER, JJ., concur.