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No. 3--03--0364

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

The State filed its juvenile petition on September 13, 2002,alleging that the minor was dependent, in that she lackedadequate care because of her parents' mental disabilities. OnNovember 22, 2002, a Warren County circuit judge found that bothparents had developmental disabilities, lacked parenting skillsand had difficulties providing required medical care for theminor. The court determined that the minor required closemonitoring for medical conditions, including respiratory andurinary tract infections and kidney reflux condition. Based onthese findings, Judge Clerkin adjudicated the minor dependent andordered the parents to comply with DCFS' client service plan.

On March 7, 2003, the cause was called for a dispositionalhearing. At the close of the evidence, the court made thefollowing oral ruling:

"I find that it is in the child's best interests that thechild be made a ward of the Court. I find that the health,safety and in the interest of the minor, as well as thepublic, requires that the minor be placed outside the home. I find that the parents at this time are unable to care for,protect, train, properly discipline (although the child isnot at an age appropriate for that at this point), but I ambasing this on the ability of the parents, and that thechild's health, safety and best interests would bejeopardized if the child remained in the parents' custody atthis time. I also find that services--appropriate servicesthat would be aimed at preservation of the family would beinappropriate at this time and that it would be in the bestinterests of the minor that custody and guardianship begiven to DCFS with the right to place."

The court subsequently entered a preprinted form dispositionalorder with blocks checked showing that (1) respondent was "forreasons other than financial circumstances alone unable to carefor, protect, train, educate, supervise or discipline the minorand placement with her is contrary to the health, safety and bestinterests of the minor because _________________________"; and(2) "[r]easonable efforts and appropriate services aimed atfamily reunification cannot prevent or eliminate the necessityfor removal of the minor from the home at this time and leavingthe minor in the home is contrary to the health, welfare andsafety of the minor. *** The following facts form the basis forthis finding: _________________________________________________."
 

In this appeal, respondent does not contest the sufficiencyof the evidence to support the trial court's dispositional order. She argues only that the cause must be remanded for furtherdispositional proceedings because the court failed to comply withthe statutory requirement that a written factual basis beprovided in support of the guardianship determination. 705 ILCS405/2--27(1) (West 2002). The State, citing In re R.M., 283 Ill.App. 3d 469, 670 N.E.2d 827 (1996), argues that the requirementof a written factual basis is "permissive" and subject to waiverwhere a respondent parent fails to object at trial.

Section 2--27 of the Juvenile Court Act of 1987 provides inrelevant part as follows:

"(1) If the court determines and puts in writing thefactual basis supporting the determination of whether theparents *** of a minor adjudged a ward of the court are ***unable, for some reason other than financial circumstancesalone, to care for, protect, train or discipline the minor***, and that the health, safety, and best interest of theminor will be jeopardized if the minor remains in thecustody of *** her parents ***, the court may ***

(d) commit the minor to the Department of Childrenand Family Services for care and service***. [T]heGuardianship Administrator of the Department ofChildren and Family Services shall be appointedguardian of the person of the minor." 705 ILCS 405/2--27(1) (West 2002).

In R.M., as here, the respondent mother argued for the firsttime on appeal that the trial court's failure to put its factualbasis in writing pursuant to the statute was reversible error. In rejecting this argument, the court first found that the issuewas waived for failure to object at trial. The court thenstated, "Waiver aside, section 2--27 sets forth a permissiverequirement. See In re D.K., 125 Ill. App. 3d 309, 311, 465N.E.2d 133 (1984). Moreover, the court's decision is supportedby the record and the court's failure to write the factual basisfor its determination does not necessitate remand." R.M., 283Ill. App. 3d at 472, 670 N.E.2d at 829.

Initially, we reject the State's waiver position. It iswell settled that the doctrine of waiver is a limitation on theparties, not on this court's jurisdiction. In re Marriage ofSutton, 136 Ill. 2d 441, 557 N.E.2d 869 (1990). Ourresponsibility to provide a just result warrants overridingconsiderations of waiver in this case.

We further cannot accept the statement in R.M. that section2--27 sets forth a "permissive requirement." Where, as here, weare called upon to interpret a statutory provision, our primarygoal is to give effect to the legislature's intent. In re C.M.,282 Ill. App. 3d 990, 669 N.E.2d 707 (1996). We do so by lookingto the plain language of the statute and giving the language itsordinary meaning. In re C.N., 196 Ill. 2d 181, 752 N.E.2d 1030(2001). If the language is clear and unambiguous, we must giveit effect as written without applying internally contradictoryinterpretations. See C.M., 282 Ill. App. 3d 990, 669 N.E.2d 707. Only where constitutional principles of separation of powersrequire an unrestrained exercise of judicial discretion will astatute requiring certain judicial action be construed as"permissive." See, e.g., People v. Davis, 93 Ill. 2d 155, 442N.E.2d 855 (1982) (interpreting criminal provisions requiringreasons for the trial court's sentencing determinations as"permissive" in order to affirm their constitutional validity);In re D.K., 125 Ill. App. 3d 309, 465 N.E.2d 133 (1984) (applyingthe rule of Davis in juvenile delinquency context).

The Juvenile Court Act of 1987 grants the circuit courtsauthority to make custody determinations in the best interests ofthe child. C.M., 282 Ill. App. 3d 990, 669 N.E.2d 707. Section2--27(1) authorizes the court to appoint DCFS as the legalguardian of a minor "if the court determines and puts in writingthe factual basis" supporting its determination of parentalunfitness, inability or unwillingness. (Emphasis added.) 705ILCS 405/2--27(1) (West 2002). The statute does not indicatethat the court "may" so determine or "may" put in writing itsfactual basis. The statute is not ambiguous.

Nor do we find any need to construe the language requiring awritten basis as "permissive." Having initially granted thecircuit courts authority to render custodial determinations, thelegislature is free to refine the scope of the circuit courts'custody alternatives without violating separation-of-powersprinciples. See C.M., 282 Ill. App. 3d 990, 669 N.E.2d 707.

Section 2--27(1) does not unduly infringe upon inherentpowers of the judiciary or threaten judicial independence. Rather, it comports with due process concerns when the legalcustody and guardianship of a child is removed from a parent andawarded to the State. By requiring the court to provide awritten basis for its determination of the parent's unfitness,inability or unwillingness to care for a minor, the statuteprovides the parent, as well as the court, clear notice of abenchmark for measuring subsequent efforts to correct theconditions that led to the child's removal and progress towardthe return of the child. See C.N., 196 Ill. 2d 181, 752 N.E.2d1030; In re April C., 326 Ill. App. 3d 225, 760 N.E.2d 85 (2001).

Giving effect to the plain language of section 2--27(1), wehold that the trial court's failure to provide the requiredwritten factual basis in its dispositional order was reversibleerror. Accordingly, the cause must be remanded for a newdispositional hearing and order. See C.M., 282 Ill. App. 3d 990,669 N.E.2d 707.

The judgment of the circuit court of Warren County isreversed, and the cause is remanded with directions.

Reversed and remanded.

HOLDRIDGE, P.J., and SLATER, J., concur.