Opinion
4-23-1350 4-23-1351
06-11-2024
In re K.S. and K.E., Minors v. Franklin E., Intervenor-Appellant. The People of the State of Illinois, Petitioner-Appellee,
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Rock Island County Nos. 20JA98 20JA99 Honorable Theodore G. Kutsunis, Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Cavanagh and Justice Turner concurred in the judgment.
ORDER
DeARMOND, JUSTICE
¶ 1 Held: The appellate court affirmed, holding (1) this court lacks jurisdiction to address Grandfather's appeal from the trial court's denial of his petition to intervene and (2) Grandfather lacks standing to challenge the termination of parental rights.
¶ 2 On August 21, 2023, the trial court entered an order terminating the parental rights of Joseph E. as to his minor children, K.S. (born October 2018) and K.E. (born October 2019). On appeal, intervenor-appellant, Franklin E. (Grandfather), argues (1) the trial court erred in denying his petition to intervene and (2) section 602.9(b)(2)(A) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/602.9(b)(2)(A) (West 2022)) is unconstitutional because it violates his right to substantive due process and equal protection in proceedings under the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-13 (West 2022)). We lack jurisdiction to consider Grandfather's first contention of error, find he lacks standing to raise his second contention of error, and otherwise affirm the court's judgment.
¶ 4 On July 29, 2020, the State filed petitions for adjudication of wardship and temporary custody, alleging K.S. and K.E. were neglected minors under the Juvenile Court Act (705 ILCS 405/2-3 (West 2020)). The petition alleged, in July 2020, the minors' mother, Alexis E., submitted a positive drug test and was later found unresponsive with the minors in her care. Following a hearing, the trial court placed temporary guardianship and custody of the minors with the Illinois Department of Children and Family Services (DCFS).
¶ 5 On November 13, 2020, the trial court conducted an adjudicatory hearing. The court entered a written dispositional order finding the minors neglected pursuant to a stipulation. The court made the minors wards of the court and continued guardianship and custody with DCFS.
¶ 6 Over a year later, on January 21, 2022, Grandfather filed a "verified petition for leave to intervene and to file verified petition for grandparent guardianship of minor children." Grandfather alleged he was a "relative caregiver" as defined in section 1-5(2)(a) of the Juvenile Court Act (705 ILCS 405/1-5(2)(a) (West 2022)) and therefore had an "unconditional right to intervene and to be heard by the court." Grandfather sought leave to file a petition for guardianship as to the minors. The State opposed Grandfather's petition, arguing, "The ability to intervene is entirely discretionary with the court." In May 2022, Grandfather filed a "verified motion to modify disposition order," wherein he asserted DCFS never considered him as a placement option for the minors. Grandfather acknowledged Joseph E. lived with him, but Joseph E.'s "residence [was] only temporary and that he [was] moving out within the next month." Grandfather stated that while he currently resided in Iowa, "he would be willing to move to the State of Illinois" if the minors were to be placed with him.
¶ 7 On August 10, 2022, the trial court issued a written order denying Grandfather's petition for leave to intervene. The court noted Grandfather had not been named a party at the time of the filing of the petitions for adjudication of wardship of the minors in July 2020.
Further, "Grandfather did not file a Petition to Intervene prior to the Adjudicatory/Dispositional hearing held on November 13, 2020. He did not appear at that hearing." Additionally, Grandfather, "did not file a Petition to intervene within the 30 days after the Court[']s Order of Adjudication ***. He desires to modify *** the Court's Dispositional Order. He did not appear at the first two Permanency hearings *** and request[s] for the Court to grant him the right to be heard." The court reasoned Grandfather was not a "responsible relative" that would have accorded "him the status as a necessary party" under section 1-5(1) of the Juvenile Court Act (705 ILCS 405/1-5(1) (West 2022)). The court found, "There is no indication to this court based on the facts presented that the Grandfather had requisite custody and control of the minors at the time of filing of the petition or at any time when the family in the case at bar was residing with Grandfather." The court further stated:
"The Court acknowledges that Grandfather may have provided financial support to the family *** and may have been a caregiver while they lived with him during the time period before January 2020, but there [are] no facts before the Court that he had the requisite custody and control of the minors after the parents moved to Illinois in January 2020 nor at the time of the filing of this case in July 2020." (Emphasis omitted.)
The court concluded Grandfather "could be allowed to attend all hearings and be heard, but that is the only participation in the case as it goes forward this Court will allow."
¶ 8 On April 7, 2022, the State filed petitions to terminate Joseph E.'s parental rights. Alexis E. signed consents to adoption during the pendency of the proceedings. On July 22, 2022, the Bethany for Children &Families agency submitted a "Status Alert" report indicating Grandfather posted several videos and photographs to Facebook. In addition to the details of the minors' case, the Facebook post also included the names of the minors and the foster parents. That same day, the trial court admonished Grandfather to remove the Facebook post.
¶ 9 On May 30, 2023, the trial court conducted the fitness hearing. After evidence and argument from the parties, the court issued an order finding Joseph E. unfit. Prior to the best interests hearing, the Bethany for Children &Families agency again submitted a "Status Alert" report indicating Grandfather posted several videos and photographs to Facebook. The Facebook posts inter alia included information about the minors' case, including a copy of a court order. The guardian ad litem subsequently filed a petition for rule to show cause against Grandfather.
¶ 10 On August 21, 2023, the trial court conducted the best interests hearing. Following evidence and argument from the parties, the court found termination of Joseph E.'s parental rights was in the minors' best interests. This court affirmed the termination of Joseph E.'s parental rights. In re K.S., 2024 IL App (4th) 230743-U.
¶ 11 Grandfather filed a notice of appeal on September 15, 2023. That same day, the trial court declined to file his notice of appeal, noting, "Since [Grandfather] is not a party, he has no standing to appeal." Grandfather filed a "Motion to Compel Filing of Notice of Appeal and Record on Appeal in Appellate Court" on October 11, 2023. On November 21, 2023, the court held a hearing on Grandfather's motion. Grandfather argued the court lacked jurisdiction to decline to file a notice of appeal. The court granted Grandfather's motion and ordered the notice of appeal filed, but it emphasized Grandfather had "not been accorded a party status."
¶ 12 This consolidated appeal followed.
¶ 13 II. ANALYSIS
¶ 14 We initially comment on the delay in the issuance of this order. As a matter addressing the custody of minor children, this case is subject to expedited disposition under Illinois Supreme Court Rule 311(a)(5) (eff. July 1, 2018), requiring the appellate court to issue its decision within 150 days after the filing of a notice of appeal, except for good cause shown. Although every effort was made to comply with the deadline under Rule 311(a)(5), due to delays occasioned by the late filing of Grandfather's notice of appeal by the trial court, we find good cause for issuing our decision after the 150-day deadline.
¶ 15 On appeal, Grandfather alleges the trial court erred in denying his petition for leave to intervene. The State asserts this court lacks jurisdiction to address Grandfather's argument.
¶ 16 Illinois Supreme Court Rule 303(b)(2) (eff. July 1, 2017) mandates a notice of appeal "shall specify the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court." This court acquires jurisdiction over the judgments specified in the notice of appeal and lacks jurisdiction over any matter or judgment not so specified. Diocese of Quincy v. Episcopal Church, 2014 IL App (4th) 130901, ¶ 35, 14 N.E.3d 1245.
¶ 17 Grandfather filed his petition for leave to intervene on January 21, 2022. On August 10, 2022, the trial court entered a written order denying Grandfather's petition. Grandfather filed his notice of appeal on September 15, 2023. This notice of appeal referenced the court's August 21, 2023, order and addressed only the court's termination of Joseph E.'s parental rights. Indeed, Grandfather's notice of appeal requested "reversal" of its decision and "remand *** for a new hearing on the termination of parental rights." No error regarding the now challenged denial of Grandfather's petition to intervene was asserted. Accordingly, we lack jurisdiction over Grandfather's first argument.
¶ 18 Grandfather also challenges the trial court's termination of Joseph E.'s parental rights. Specifically, Grandfather alleges section 602.9(b)(2)(A) of the Marriage Act (750 ILCS 5/602.9(b)(2)(A) (West 2022)), which provides visitation by certain nonparents does not apply when the minor is subject to a petition under section 2-13 of the Juvenile Court Act (705 ILCS 405/2-13 (West 2022)), "is unconstitutional [and] violative of substantive due process and equal protection" because termination of parental rights also terminates the rights of a grandparent.
¶ 19 We note our supreme court has articulated a long-standing rule that cases should be decided on nonconstitutional grounds whenever possible and constitutional issues should be addressed only as a last resort. People v. Bass, 2021 IL 125434, ¶ 30, 182 N.E.3d 714 (citing In re E.H., 224 Ill.2d 172, 178, 863 N.E.2d 231, 234 (2006)). As such, reviewing courts must avoid reaching constitutional issues unless necessary to decide a case. Bass, 2021 IL 125434, ¶ 30. Here, we do not reach Grandfather's constitutional challenge because we resolve this issue based on standing.
¶ 20 In Illinois, standing requires "some injury in fact to a legally cognizable interest." In re Nitz, 317 Ill.App.3d 119, 122, 739 N.E.2d 93, 97 (2000). "[A]ny party to a case may seek appellate review from a final judgment that is adverse to his interests" Nitz, 317 Ill.App.3d at 122. A nonparty may have standing when he has "a direct, immediate and substantial interest in the subject matter of the litigation which would be prejudiced by the judgment or benefit by its reversal." (Internal quotation marks omitted.) In re C.H., 2018 IL App (3d) 180089, ¶ 12, 115 N.E.3d 244. A nonparty must "establish his interest in the proceeding as a prerequisite to appeal." Vece v. De Biase, 31 Ill.2d 542, 545, 202 N.E.2d 482, 484 (1964).
¶ 21 Although the trial court granted Grandfather the right to be heard, he was not a party to the juvenile proceedings. See 705 ILCS 405/1-5(2)(a) (West 2022) ("Though not appointed guardian or legal custodian or otherwise made a party to the proceeding, any current or previously appointed foster parent or relative caregiver, or representative of an agency or association interested in the minor has the right to be heard by the court, but does not thereby become a party to the proceeding." (Emphasis added.)). As Grandfather was not a party to the juvenile proceedings and failed to properly challenge the denial of his motion to intervene, he must establish a "direct, immediate and substantial interest." (Internal quotation marks omitted.) C.H., 2018 IL App (3d) 180089, ¶ 12. Although Grandfather states he has a "fundamental right to maintain his relationship with his grandsons," he offers no support for that contention. We therefore have no basis to disturb any of the trial court's rulings.
¶ 22 Even assuming, arguendo, Grandfather had standing, we would nevertheless find the issue forfeited for purposes of appeal. Grandfather did not raise the alleged unconstitutionality of the Marriage Act in the trial court. It is well settled that even "constitutional issues not presented to the trial court are deemed [forfeited] and may not be raised for the first time on appeal." In re O.R., 328 Ill.App.3d 955, 959, 767 N.E.2d 872, 875 (2002). Thus, because Grandfather failed to raise the issue below, he has forfeited review of it on appeal.
¶ 23 III. CONCLUSION
¶ 24 For the reasons stated, affirm the trial court's judgment.
¶ 25 Affirmed.