In re T.B.
Case Date: 10/24/2001
Court: 3rd District Appellate
Docket No: 3-01-0178 Rel
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October 24, 2001 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2001
JUSTICE McDADE delivered the opinion of the court: Following a permanency review hearing, the court orderedthat the permanency goal for the respondent mother's children bechanged from "return home" to "substitute care." Section 2--28(3) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2--28(3) (West 2000)) states that any such order is immediatelyappealable as of right. Accordingly, the respondent appeals fromthe court's order. We dismiss the appeal for lack ofjurisdiction because we hold that section 2--28(3) violates theseparation of powers clause of the Illinois Constitution. BACKGROUND On September 2, 1998, the State filed a juvenile petitionasking that the court find the respondent's children neglectedbecause of a history of domestic violence in the home, therespondent's substance abuse problem, and the respondent'sattempted suicide. The court ordered that the parents should notcommit further incidents of domestic violence, should not havealcohol or illegal substances in the home, and should not usesuch substances. The State filed a supplemental juvenile petition onOctober 7, 1998, alleging violations of the previous court order. The court then ordered that the children be placed in sheltercare. Following a dispositional hearing on the petitions, thecourt found the respondent to be unfit. She was ordered tocomplete a variety of tasks. Five permanency review orderssubmitted by the court between April 29, 1999, and September 7,2000, indicated that the respondent was making reasonableprogress toward completing her assigned tasks. Each of thesepermanency review orders set a permanency goal of "return home"for the children. On February 1, 2001, the court's permanency review orderchanged this goal to "substitute care." The court noted that therespondent had not made reasonable efforts to achieve the serviceplan and permanency goal because of her mental illness, missedappointments, engaged in threatening behavior toward a visitationspecialist, attempted to "drop" an order of protection againstthe father of two of the children, and subsequently attempted toreunite with him. The respondent appeals from this latestpermanency review order, as provided by the Act. 705 ILCS 405/2--28(3) (West 2000). ANALYSIS Section 2--28 of the Act provides the procedure a court usesto establish a permanency goal for minors found to be abused orneglected. 705 ILCS 405/2--28 (West 2000). The court mustconduct permanency hearings at a minimum of every six monthsafter the initial permanency hearing. 705 ILCS 405/2--28(2)(West 2000). Following each permanency hearing, the court shallenter a written order. 705 ILCS 405/2--28(3) (West 2000). Thefinal sentence of section 2--28(3) states that such an order"shall be immediately appealable as a matter of right underSupreme Court Rule 304(b)(1)." 705 ILCS 405/2--28(3) (West2000). This Illinois Supreme Court rule states that an "orderentered in the administration of [a] *** guardianship, *** whichfinally determines a right or status of a party" is appealable. 155 Ill. 2d R. 304(b)(1). Recently, two districts of the Illinois Appellate Court haveruled that the final sentence of section 2--28(3), granting anappeal as of right from a permanency review order, violates theseparation of powers clause of the Illinois Constitution. See Inre D.D.H., 319 Ill. App. 3d 989, 749 N.E.2d 31 (5th Dist. 2001); In re C.B., 322 Ill. App. 3d 1011, 750 N.E.2d 1271 (4th Dist.2001). The separation of powers clause states that the threebranches of government are separate and no branch shall exercisepowers properly belonging to another. Ill. Const. 1970, art. II, |
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