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February 24, 1999

NO. 5-97-0981

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

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JUSTICE GOLDENHERSH delivered the opinion of the court:

Plaintiff, the People of the State of Illinois ex rel. the Department of Children and Family Services (the Department), appeals from an order of the circuit court of Madison County dismissing the Department's complaint against defendants, Frank Cathey and Norma Cathey. The Department filed its complaint against defendants seeking partial reimbursement for money it expended on behalf of defendants' daughter, E.C., a minor, after the Department received temporary custody of E.C. On appeal, the Department contends that (1) the trial court erred in dismissing the complaint because section 1 and section 9.1 of the Children and Family Services Act (the Act) (20 ILCS 505/1, 9.1 (West 1994)) provide that parents are liable to the Department for payments representing sums expended for their children's care and training in accordance with the parents' ability to pay, and (2) defendants waived any challenge they may have had by failing to challenge the Department's determination as to the amounts defendants owed, when they chose not to request a hearing within 30 days or to pursue the remedies specified under the administrative review law. We reverse and remand with directions.

FACTS

On October 24, 1994, E.C. was placed in the "temporary custody and guardianship" of the Department by an "Order As To Shelter Care." The order indicates, inter alia, that (1) there was a finding of probable cause to believe that E.C. was abused and neglected, (2) a shelter care hearing was waived by the parents, and (3) while the parents made no admissions as to the allegations in the petition and, in fact, denied the allegations, they agreed to the entry of the order. A hearing on the merits was scheduled within 30 days; however, that hearing did not occur, and the cause was continued.

The record indicates that defendants were notified by letter, dated June 21, 1995, that pursuant to section 9.1 of the Act (20 ILCS 505/9.1 (West 1994)), they owed $80 per month, effective December 1, 1994, for the cost of the care of E.C. Defendants did not respond to this letter. On February 14, 1997, the State of Illinois, on behalf of the Department, filed a complaint against defendants for unpaid assessments that amounted to $1,977.11 through November 1996. On March 11, 1997, defendants filed a motion to dismiss on the basis that since the Department had not yet made a final adjudication of abuse and neglect, E.C. could not be receiving "care and training" from the Department. Defendants asserted that the Department's designation as temporary custodian, by virtue of a shelter care hearing, was insufficient to create an obligation to pay for E.C.'s care.

On April 11, 1997, the Department filed its motion to strike defendants' motion to dismiss. The Department alleged that defendants' obligation to pay for E.C.'s care was not dependent upon a final adjudication of abuse and neglect. Rather, the shelter care order, agreed to by defendants, was sufficient to create an obligation to pay. The Department also pointed out that defendants did not appeal from the June 21, 1995, notice within 30 days.

On August 8, 1997, the trial court dismissed the cause without prejudice and allowed the Department 30 days to amend its complaint. The Department chose to stand on its original complaint and moved for the entry of a final order. On October 24, 1997, the trial court entered a final order. The Department now appeals.

ANALYSIS

While defendants' motion to dismiss failed to indicate under which section of the Code of Civil Procedure (the Code) dismissal was sought, the parties now agree that dismissal was sought pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 1996)). In reviewing the dismissal of a complaint pursuant to section 2-615 of the Code, we must determine whether the complaint, when viewed in the light most favorable to the plaintiff, alleges facts sufficient to establish a cause of action. Ziemba v. Mierzwa, 142 Ill. 2d 42, 566 N.E.2d 1365 (1991). In making this determination, we take as true all well-pleaded facts in the complaint (142 Ill. 2d at 46, 566 N.E.2d at 1366) and reasonable inferences drawn from those facts. Stinson v. Physicians Immediate Care Ltd., 269 Ill. App. 3d 659, 646 N.E.2d 930 (1995). The trial court's dismissal of a complaint under section 2-615 is subject to de novo review. 269 Ill. App. 3d at 661-62, 646 N.E.2d at 932.

The Department asserts that the trial court erred in dismissing its complaint against defendants because defendants had a duty under section 1 and section 9.1 of the Act to provide reimbursement for the care the Department provided to defendants' daughter. Defendants respond that the Department cannot assess support payments under section 9.1 of the Act against parents whose child is in temporary shelter care under the Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 1996)). Defendants refer us to numerous sections of not only the Juvenile Court Act but also the Children and Family Services Act, as well as the Illinois Administrative Code, Title 89, Chapter 111, part 352, in support of their contention that there is no provision which requires parents to be financially responsible for their children's care when the children are placed with the Department pursuant to a shelter care hearing. Additionally, defendants assert that even if section 9.1 of the Act does authorize the Department to make support determinations against these parents, such legislation is in violation of the due process provisions of both the United States and Illinois Constitutions. See U.S. Const., amend. V; Illinois Const. 1970, art. I,