November 15, 2001
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT No. 97--JAK--080 Honorable Respondent, J.Z., appeals from the trial court's November 3,
2000, order changing the permanency goal for his two minor
daughters from return home within five months to guardianship with
the Illinois Department of Children and Family Services (DCFS) and
placement with the foster parents. Respondent was granted
visitation rights. On appeal respondent contends that (1) the trial court's
designation of the permanency goal of guardianship was against the
manifest weight of the evidence; and (2) the selection of a
permanency goal of guardianship was not in the children's best
interests. The State maintains that this court lacks jurisdiction
to hear respondent's appeal because a permanency goal is not a
final determination of the rights or status of a party. According to his jurisdictional statement, respondent bases
this court's jurisdiction to hear his appeal on Supreme Court Rule
304(b)(1) (155 Ill. 2d R. 304 (b)(1)). Respondent declares that
Rule 304(b)(1) is the rule "referenced" in section 2--28(3) of the
Juvenile Court Act of 1987 (705 ILCS 405/2--28(3) (West 1998)) as
the rule governing appeals of permanency review proceedings.
However, that section, which provides that "[a]ny order entered
pursuant to this subsection *** shall be immediately appealable as
a matter of right under Supreme Court Rule 304(b)(1)" (705 ILCS
405/2-28-(3) (West 1998)), has been found to be unconstitutional
because it violates the separation-of-powers clause of our state
constitution (Ill. Const. 1970, art. VI, §6). See, e.g., In re
A.M., 324 Ill. App. 3d 144 (2001); In re C.B., 322 Ill. App. 3d
1011 (2001); In re D.D.H., 319 Ill. App. 3d 989 (2001). Respondent
maintains that, even though section 2--28(3) has been held to be
unconstitutional, this case, nevertheless, falls within the terms
of Rule 304(b)(1) and, consequently, it applies. Rule 304(b)(1) (155 Ill. 2d R. 304(b)(1)) states that "[a]
judgment or order entered in the administration of an estate,
guardianship, or similar proceeding which finally determines a
right or status of a party" may be appealed. We have recently
determined in In re A.M., 324 Ill. App. 3d 144, 145-46 (2001), that
an order changing a permanency goal constitutes a nonfinal order
for which the supreme court has provided no rule for appeal to this
court. Other districts of the appellate court are in agreement.
See, e.g., D.D.H., 319 Ill. App. 3d at 991 (an order setting a
permanency goal is not final because it "does not finally determine
a right or status of a party but instead looks at the anticipated
future status of the child" (emphasis in original)). Moreover,
our supreme court has recently stressed that a permanency order is
not a final determination of a party's rights or status but,
rather, is an intermediate step taken in the best interests of the
child. In re D.S., No. 88460, slip op. at 17 (June 21, 2001). In the present case the notice of appeal declares that it is
from the November 3, 2000, permanency hearing order. Although the
trial court's remarks in changing the permanency order from return
home to permanent guardianship reflect that it did not foresee a
return home of the minors to respondent, it did not rule out such
a return, stating that "it is an unknown point in the future." In
our view, therefore, the order setting the new permanency goal did
not finally determine respondent's parental rights. In support of
our conclusion we note that the court did not terminate
respondent's parental rights nor did the State request such action.
The trial court specifically commented on the record that the State
had indicated that it would not be filing a petition to terminate.
Also, the court stated that overnight visitation with respondent
was appropriate and was to continue. As the record indicates that
respondent's appeal is from a permanency order, we find the order
is not final and, therefore, not appealable under Rule 304(b)(1). In response to the State's jurisdictional challenge,
respondent in his reply brief now requests that, if we find that
appeal under Rule 304(b)(1) is improper, we consider Supreme Court
Rule 306(a)(5) (166 Ill. 2d R. 306(a)(5)) as an alternative basis
of jurisdiction. Rule 306(a)(5) allows a party to petition for
leave to appeal to the appellate court "from interlocutory orders
affecting the care and custody of unemancipated minors, if the
appeal of such orders is not otherwise specifically provided for
elsewhere in these rules." 166 Ill. 2d R. 306(a)(5). Rule
306(a)(5), however, was not set forth in respondent's statement of
jurisdiction as a basis for authorizing this appeal. The purpose
of a jurisdictional statement is not merely to tell the court that
it has jurisdiction but to provoke counsel to make an independent
determination of the right to appeal before writing the brief.
Vowell v. Pedersen, 315 Ill. App. 3d 665, 666 (2000). Nonetheless,
we do not believe Rule 306(a)(5) applies. We find support for
our position in In re Curtis B., No. 1--99--2683 (August 1, 2001).
In Curtis B., the respondent mother relied on section 2--28(3)
of the Juvenile Court Act to bring an appeal under Supreme Court
Rule 304(b)(1) from an order changing the permanency goal for her
son. In accordance with the decisions of two other districts of
the appellate court, In re C.B., 322 Ill. App. 3d 1011 (2001), and
In re D.D.H., 319 Ill. App. 3d 989 (2001), the First District found
that the portion of section 2--28(3) that allowed a party to
immediately appeal a nonfinal permanency order was unconstitutional
because it encroached upon the exclusive power of the judiciary to
regulate matters of appellate practice and procedure. Curtis B.,
slip op at 9. As a permanency goal is not a final determination of
a party's rights or status and as Rule 304(b)(1) allows for an
appeal only from a proceeding that finally determines a party's
rights or status, jurisdiction to hear respondent's appeal was
lacking. As an alternative basis of jurisdiction, however, the
respondent claimed, as respondent claims in the instant case, that
her appeal was proper under Supreme Court Rule 306(a)(5). The
court found that jurisdiction was not proper in that case under
Rule 306(a)(5) because an order setting a permanency goal was not
an appealable final order. Curtis B., slip op. at 8. We agree and
reach the same conclusion here. As determined above, the
respondent's parental rights have not been finally decided, and the
trial court's interim decision to set a new permanency goal does
not elevate the order implementing the goal to one that is
appealable under Rule 306(a)(5). Therefore, based on the above reasoning, we dismiss this
appeal for lack of jurisdiction. Dismissed. HUTCHINSON, P.J., and RAPP, J., concur.
No. 2--00--1305
In re A.Z. and Z.Z., Minors
(The People of the State of
Illinois, Petitioner-Appellee,
v. J.Z., Respondent-Appellant).)
)
)
)
)
)
)
)Appeal from the Circuit Court
of Kane County.
Gene L. Nottolini,
Judge, Presiding.
JUSTICE BOWMAN delivered the opinion of the court: