In re K.C.
- Reporters:
- , ,
- Before:
- Cohen
Article XI-A of the Probate Act of 1975 (
The issue: whether the plenary guardian of a person adjudicated disabled under the Probate Act is a necessary party under the Juvenile Court Act of 1987 (
The judgments of the juvenile court judge are reversed.
1. Background
The record reflects that respondent Kenya C. was adjudicated disabled in the probate of the circuit court of Cook County under section 11a-3 of the Probate Act (
On February 3, 1996, Kenya gave birth to a son, K.C. K.C. tested positive at birth for the presence of both serum cocaine metabolites and syphilis antibodies. On February 16, 1996, the State filed a petition for adjudication of wardship and a motion for temporary custody with respect to K.C., alleging both neglect (predicated on both injurious environment and drug exposure) and abuse (predicated on substantial risk of physical injury).
On November 5, 1997, the State filed a petition for the termination of Kenya‘s parental rights to K.C. and the appointment of a guardian with the power to consent to K.C.‘s adoption.
A hearing was scheduled on the State‘s petition for March 31, 1998, but was subsequently continued. On March 31, 1998, the court entered an order appointing Mr. Patrick Schlee as guardian ad litem for Kenya.2
On January 25, 1999, Kenya‘s attorney, assistant public defender Nancy Joslyn, filed on Kenya‘s behalf a motion to dismiss the termination proceedings. The motion stated that Kenya was disabled, had been under adult guardianship since 1993 and that both the fact of Kenya‘s wardship and the identity of Kenya‘s adult guardian, Ms. Patricia Young, had been available to the State. The motion argued that because Kenya was a necessary party to the termination proceedings, and because Kenya‘s guardian “stands in, in effect, by operation of law” for her ward, the guardian was therefore a necessary party as well. The motion also noted that nowhere in the Juvenile Court Act is the plenary adult guardian of an otherwise necessary party to termination proceedings exempted from service. The motion concluded that failure to serve the plenary guardian with proper notice of motion should result in the dismissal of the State‘s petition.
The record on appeal contains no written response from the State to Kenya‘s motion to dismiss. The trial court addressed the merits of the motion on January 28, 1999, when the parties appeared for the scheduled termination hearing. In discussing the matter of Kenya‘s adult guardian, the trial court engaged in the following dialog with Mr. Schlee, whom the court had previously appointed as guardian ad litem for Kenya:
“THE COURT: The situation is this: It‘s clear from the pleadings and from the causes in front of me concerning [K.C.] * * * that the mother in fact had a guardian appointed for her and that guardian preceded your appointment, counsel. And actually Ms. Joslyn, who is the public defender appointed for the mother, has applied in a pleading before this court that the office of the State Guardian has been appointed as the plenary guardian of Kenya [C.] on March 25, 1993. So she has a guardian.
MR. SCHLEE: Okay, Judge.
THE COURT: I think it gets confusing, and I‘m not exactly certain of all the intricacies of the law on this, but sometimes it‘s just a matter of course that a person in like circumstance such as the mother has a state guardian and comes into court and has a legal representative of the public defender and another guardian appointed. And it strikes me as being somewhat excessive because I just don‘t understand how many people it takes to do this when there‘s an order already in effect. So with all due respect.
MR. SCHLEE: No problem, Judge.”
The court then allowed without objection Mr. Schlee‘s oral motion to withdraw as Kenya‘s guardian ad litem, leaving Kenya without a guardian of any kind present in court for the upcoming termination hearing.
The trial court then asked the State for its position with respect to Kenya‘s motion to dismiss. The assistant State‘s Attorney
“THE COURT: So how can you now say [Kenya] is not properly before the court when you entered an appearance on behalf of her?
MS. JOSLYN: Because the guardian has never had service of summons and [it] was never waived.
THE COURT: You waived it.
MS. JOSLYN: I never waived it. * * * The point is that there is no indication that this guardian of this disabled person was ever present or notified and we can not [sic] assume proper jurisdiction.
* * *
THE COURT: We have a personal service document that was served upon the mother and that is [in] the court file. You were appointed, you filed an answer on the mother‘s behalf, never raising jurisdiction; you engaged in discovery; you set a trial date; you participated in a forensic services order that required the mother to go in and be interviewed extensively. There is alot [sic] of discovery that has gone forward here. And as a result you have, I believe according to the law, waived anything with regard to [K.C.] insofar as jurisdiction. Your motion with regard to [K.C.] will be denied.
MS. JOSLYN: Judge just for the record. I don‘t believe that as a public defender I could waive her constitutional right as to inquiring as to her capacity to waive. She has no capacity to waive it.
THE COURT: Madam, you are appointed her attorney and you came in on every court date and you filed as on behalf of your client thereby waiving the jurisdictional issue. * * * So I don‘t see that the jurisdiction is an issue. I truly don‘t.”
The court next ruled that it lacked jurisdiction with respect to the separate petition for the termination of Kenya‘s parental rights to K.C.‘s sister, A.C., stating: “So as the mother stands before me * * * she is a disabled person and she does not have counsel and she has not entered an appearance and she has not entered an answer and so, therefore, I believe that there is no jurisdiction.” In response to the assistant State‘s Attorney‘s argument that the mother had appeared generally with respect to A.C. by being in court, the court answered: “Well, now wait a second. You know, let‘s be serious now, she is a disabled person.” The court then proceeded with the termination hearing as to K.C. Following the hearing, the trial court entered an order finding Kenya an unfit parent, terminating her parental rights to K.C. and appointing Ortega-Piron as guardian of K.C. with the power to consent to his adoption.
2. Analysis
We first address the trial court‘s determination that Kenya had waived any objection to the jurisdiction of the trial court predicated on the failure to name and serve notice upon her plenary guardian of the person as a necessary party with respect to the termination proceedings. The trial court appeared to conclude that because Kenya‘s appointed counsel had filed a general appearance on Kenya‘s behalf, Kenya had thereby waived any further jurisdictional objection under the former special appearance statute.
Kenya does not appeal the adjudication of wardship of K.C., but only the termination of her parental rights to K.C. and the appointment of a guardian with the power to consent to K.C.‘s adoption. It is axiomatic, however, that “[c]ourts, at every level, have an obligation to raise the lack of jurisdiction sua sponte.” People v. Wright, 189 Ill.2d 1, 34, 243 Ill.Dec. 198, 723 N.E.2d 230 (1999) (Freeman, C.J., specially concurring). We therefore consider whether the trial court had jurisdiction to adjudicate K.C. a ward of the court prior to its termination of Kenya‘s parental rights.3
“The basic requirements of due process and fairness must be satisfied in juvenile court proceedings.” People v. D.J., 175 Ill.App.3d 491, 493, 124 Ill.Dec. 931, 529 N.E.2d 1048 (1988), citing In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); People v. R.D.S., 94 Ill.2d 77, 81, 67 Ill.Dec. 813, 445 N.E.2d 293 (1983). “In a juvenile proceeding adequate notice to the minor and his parents is a requirement of due process.” In re J.P.J., 109 Ill.2d 129, 135, 92 Ill.Dec. 802, 485 N.E.2d 848 (1985). The question before us—whether the plenary guardian of the person of an adult parent must be named and served as a necessary party to juvenile court proceedings for the adjudication of the adult ward‘s minor child to himself become a ward of the court—is one of statutory construction, which we consider de novo. Village of Mundelein v. Franco, 317 Ill.App.3d 512, 517, 251 Ill.Dec. 515, 740 N.E.2d 801 (2000).
“`In the exercise of statutory construction, our primary task is to ascertain and effectuate the intent of the legislature. In interpreting a statute we may consider the reason and necessity for the law, the evils it was intended to remedy, and its ultimate aims. Also, we must assume that the legislature did not intend an absurd or unjust result. However, our inquiry must always begin with the language of the statute, which is the surest and most reliable indicator of legislative intent. The language of the statute must be given its plain and ordinary meaning, and where the statutory language is clear and unambiguous, we have no occasion to resort to aids of construction. Nor, under the guise of statutory interpretation, can we “correct” an apparent legislative oversight by rewriting a statute in a manner inconsistent with its clear and unambiguous language. [Citations.]‘” Franco, 317 Ill.App.3d at 517, 251 Ill.Dec. 515, 740 N.E.2d 801, quoting People v. Pullen, 192 Ill.2d 36, 42, 248 Ill.Dec. 237, 733 N.E.2d 1235 (2000).
Section 1-5 of the Juvenile Court Act specifies the rights of parties to proceedings thereunder:
”[T]he minor who is the subject of the proceeding and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and also, although proceedings under this Act are not intended to be adversary in character, the right to be represented by counsel.” (Emphasis added.)
705 ILCS 405/1-5(1) (West 1998).
(There is a narrow constraint on the rights of parties to wardship proceedings with respect to the inspection of court documents.
Analysis must begin with an exploration of the nature of the protection the court intended for Kenya when the court appointed a plenary guardian of the person over her. Guardianship of disabled adults
“If the respondent is adjudged to be disabled and to be totally without capacity as specified in Section 11a-3, and if the court finds that limited guardianship will not provide sufficient protection for the disabled person * * * the court shall appoint a plenary guardian for the respondent‘s person.”
The precise scope of the powers and duties of a guardian of the person is set forth in section 11a-17.
The decision-making authority of a plenary guardian of the person under section 11a-17 is exceedingly broad. In re Adoption of Savory, 102 Ill.App.3d 276, 278, 58 Ill.Dec. 359, 430 N.E.2d 301 (1981).
“To the extent ordered by the court and under the direction of the court, the guardian of the person shall have custody of the ward and the ward‘s minor and adult dependent children; shall procure for them and shall make provision for their support, care, comfort, health, education and maintenance, and professional services as are appropriate * * *. * * * The guardian shall assist the ward in the development of maximum self-reliance and independence.”
755 ILCS 5/11a-17(a) (West 1998).
See generally In re Guardianship of Mabry, 281 Ill.App.3d 76, 87, 216 Ill.Dec. 848, 666 N.E.2d 16 (1996). The practical effect of this section is that the plenary guardian of the person, under the direction of the court, makes all decisions and exercises all legal rights on behalf of the ward that impact the exercise of the guardian‘s statutory authority.
In considering the nature of the rights at issue, we find it both self-evident and irrefutable that a parent‘s right to be a parent is of “deep human importance.” In re K.B., 314 Ill.App.3d 739, 748, 247 Ill. Dec. 866, 732 N.E.2d 1198 (2000). “[T]he United States Supreme Court [has] stated that the interest of natural parents in the care, custody, and management of their children is a fundamental liberty interest protected under the fourteenth amendment.” In re B.C., 247 Ill.App.3d 803, 806, 187 Ill.Dec. 486, 617 N.E.2d 1207 (1993), citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599, 603 (1982); In re Enis, 121 Ill.2d 124, 128-29, 117 Ill.Dec. 201, 520 N.E.2d 362 (1988). It is this fundamental liberty interest that the due process rights of the parent enumerated in section 1-5(1) of the Juvenile Court Act were codified to protect.
While nowhere does section 11a-17 of the Probate Act grant a plenary guardian of the person the express authority to exercise on a ward‘s behalf the rights enumerated in section 1-5(1), the Illinois Supreme Court recently examined the implied authority of a plenary guardian of the person of a disabled adult under section 11a-17. In In re Marriage of Burgess, 189 Ill.2d 270, 271, 244 Ill.Dec. 379, 725 N.E.2d 1266 (2000), the court considered whether such a guardian had standing to continue a dissolution of marriage action filed by the ward prior to both the adjudication of the ward‘s disability and the guardian‘s own appointment. In deciding whether an express grant of statutory authority was necessary in such a case, the Burgess court noted that “[i]n other cases involving guardians’ authority to make personal decisions on behalf of a ward, Illinois courts have held that the guardians may make such decisions under section 11a-17 even though the power to do so is not specifically enunciated.” Burgess, 189 Ill.2d at 273, 244 Ill.Dec. 379, 725 N.E.2d 1266.
The types of decisions that Illinois courts have found to be impliedly supported by section 11a-17 have been of an intensely personal nature and have related to the most intimate issues of the ward‘s family and health. For example, guardians may decide on behalf of a ward to withdraw artificial nutrition and hydration, potentially resulting in the death of the ward (In re Estate of Longeway, 133 Ill.2d 33, 45-46, 139 Ill.Dec. 780, 549 N.E.2d 292 (1989); In re Estate of Greenspan, 137 Ill.2d 1, 16, 146 Ill.Dec. 860, 558 N.E.2d 1194 (1990)), to consent to the adult ward‘s own adoption (In re Adoption of Savory, 102 Ill.App.3d 276, 277-78, 58 Ill.Dec. 359, 430 N.E.2d 301 (1981)), and to consent to an abortion on behalf of a disabled ward (In re Estate of D.W., 134 Ill.App.3d 788, 791, 89 Ill.Dec. 804, 481 N.E.2d 355 (1985)).
Thus, there is ample precedent to support the implied authority of a plenary guardian of the person to make personal decisions on a ward‘s behalf under section 11a-17. Where courts have required an express grant of statutory authority, on the other hand, that requirement has been based on policy reasons and has been “premised on the personal nature of the decision [at issue].” Burgess, 189 Ill.2d at 275, 244 Ill.Dec. 379, 725 N.E.2d 1266. For example, although a guardian must have express authority under section 11a-17 in order to institute dissolution of marriage proceedings on a ward‘s behalf (In re Marriage of Drews, 115 Ill.2d 201, 205, 104 Ill.Dec. 782, 503 N.E.2d 339 (1986)), the Burgess court held that the implied authority of the plenary guardian under section
The question of whether, either before or after a determination of the parental fitness of the ward, a plenary guardian of the person may consent to the adoption of the ward‘s minor children is not before us, and we do not reach it here. However, the matter of such consent does provide a useful comparison: “While the risk that a guardian may be acting contrary to a ward‘s wishes may [potentially] support [a] rule that a guardian‘s power to [consent to the adoption of the ward‘s minor children] must be specified by the legislature, this policy consideration does not justify requiring express statutory authority for a guardian to [contest on the ward‘s behalf the adjudication of the ward‘s children as wards of the court].” Burgess, 189 Ill.2d at 276, 244 Ill.Dec. 379, 725 N.E.2d 1266.
We therefore hold that the authority of a plenary guardian of the person to exercise the rights granted to that guardian‘s adult ward in section 1-5(1) of the Juvenile Court Act need not be expressly stated in section 11a-17 of the Probate Act.
Although Kenya was able to make known to the trial court her desire to retain her parental rights to K.C., it fell to
We therefore hold that the plenary guardian of the person of a disabled adult is a necessary party to proceedings under section 2-22 of the Juvenile Court Act for the adjudication of the disabled adult‘s minor child to himself become a ward of the court. The plenary guardian is thus entitled to notice of such proceedings in accordance with section 2-15 of that Act.
A pleading that does not name and notify a necessary respondent in a juvenile proceeding fails to invoke the jurisdiction of the court and thereby renders its orders void. In re A.H., 195 Ill.2d at 423-24, 254 Ill.Dec. 737, 748 N.E.2d 183; In re C.R.H., 163 Ill.2d at 271-72, 206 Ill.Dec. 100, 644 N.E.2d 1153; In re J.L.S., 188 Ill.App.3d at 816, 136 Ill.Dec. 129, 544 N.E.2d 815. Kenya‘s plenary guardian of the person, whom we have determined was a necessary party, was neither named in the wardship petition nor served notice of the proceedings, thereby depriving Kenya of due process in the exercise of her rights under section 1-5(1). The order of the circuit court adjudicating K.C. a ward of the court is therefore void for lack of jurisdiction.
We turn next to the order terminating Kenya‘s parental rights and appointing a guardian with the power to consent to K.C.‘s adoption. Due process dictates that Kenya‘s plenary guardian of the person was equally a necessary party to the termination proceedings; however, the plenary guardian was neither named as a party respondent in nor served notice of those proceedings. The order terminating Kenya‘s parental rights and appointing a guardian with the power to consent to K.C.‘s adoption is therefore similarly flawed. It is also void.
The courts of this state are called upon to administer the Juvenile Court Act “in a spirit of humane concern, not only for the rights of the parties, but also for the fears and the limits of understanding of all who appear before the court.”
For the foregoing reasons, the orders of the circuit court adjudicating K.C. a ward of the court, terminating Kenya‘s parental rights and appointing a guardian with the power to consent to K.C.‘s adoption are reversed.
Reversed.