FIFTH DIVISION February 6, 2015

No. 1-13-0414

MICHAEL T. BENZ and LYNN M. BENZ, ) Appeal from the Circuit Court ) of Cook County. Plaintiffs-Appellants, ) ) v. ) ) No. 11 CH 43956 THE DEPARTMENT OF CHILDREN AND FAMILY ) SERVICES, RICHARD CALICA, DIRECTOR OF ) CHILDREN AND FAMILY SERVICES, and STEVEN ) The Honorable JAFFE, not individually but solely as Guardian Ad Litem ) Neil Cohen, for J.C., ) Judge, presiding.

Defendants-Appellees.

PRESIDING JUSTICE PALMER delivered the judgment of the court, with opinion. Justices McBride and Gordon concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs, Michael and Lynn Benz, served as foster parents for the minor, J.C., for

approximately nine months. Following removal of the minor by the Department of Children and

Family Services (DCFS), plaintiffs unsuccessfully pursued an administrative appeal, and then

sought administrative review in the circuit court. Plaintiffs appeal from the circuit court's

decision affirming DCFS's final administrative determination that J.C. should remain with a

relative in Tennessee, Angela B. Plaintiffs concede that during the pendency of this case, Angela

B.'s adoption of J.C. became finalized. As in the circuit court, the State maintains on appeal that 1-13-0414

plaintiffs' claims are moot. 1 Plaintiffs argue the public interest exception to the doctrine of

mootness applies in this case and this court should therefore review their claims.

¶2 I. BACKGROUND

¶3 We recognize that this case involves an extensive record from the circuit court and

administrative proceedings below. However, given our ultimate resolution of the case, we

discuss the facts only to the extent necessary to resolve the dispositive issues on appeal.

¶4 J.C. was born on July 29, 2009, and taken into protective custody by DCFS on October

17, 2009, after his biological mother was arrested. 2 His father was incarcerated at the time. J.C.

was placed in foster care with plaintiffs on October 28, 2009, with the initial goal being to return

J.C. home to his biological mother. However, J.C.'s mother died on March 4, 2010, of a drug

overdose. J.C.'s caseworker with Child Link, the welfare agency contracted with DCFS, asked

plaintiffs whether they would be interested in adopting J.C., and they indicated that they were

willing to do so. However, Angela B., a paternal relative of J.C. who lived in Tennessee,

contacted Child Link regarding having J.C. placed with her, and Child Link began the process of

creating an interstate compact placement for J.C. In addition, J.C.'s biological father was

released from prison and began to have supervised visits with J.C.

¶5 J.C. lived with plaintiffs for approximately nine months until he was removed on July 19,

2010, following an incident in plaintiffs' home on Saturday, July 17, 2010, when he was burned

by a hot curling iron while being supervised by plaintiffs' 22-year-old daughter. Plaintiffs left a

message on the office phone of J.C.'s Child Link caseworker, Melissa Rodriguez, regarding the

incident, but did not contact Rodriguez on her cellular telephone or call Child Link's after-hours

1 We note that the guardian ad litem for the minor was dismissed as a party to this appeal. 2 J.C.'s half brother was also taken into protective custody and placed with the half brother's paternal grandmother.

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emergency number. In addition, plaintiffs took J.C. to a friend and neighbor who was a doctor

for treatment, instead of taking him to an emergency room. Plaintiffs also canceled J.C.'s

scheduled visit with his biological father the next day.

¶6 Upon learning of the injury, Rodriguez was instructed by her program director, Ayanna

Sims, to call the state hotline and report the incident. Rodriguez went to plaintiffs' home to view

the injury and then brought J.C. to the emergency room for evaluation on July 19, 2010.

¶7 Also on July 19, Sims decided that J.C. had to be removed from plaintiffs' home based on

the recommendation of the supervisor of the Department of Child Protection (DCP), Marnita

Martin-Harris. They believed J.C. was in imminent risk of harm and the circumstances

necessitated further investigation.

¶8 While at the hospital, a worker from DCFS arrived and informed Lynn Benz that J.C. was

being removed pending investigation because he had been injured in the home. J.C. was placed

in an emergency respite foster home for a few days and later placed with his paternal grandfather

and the grandfather's ex-wife. Rodriguez prepared an "unusual incident report" on July 23, 2010.

¶9 Plaintiffs received a "notice of change of placement" on July 24, 2010, which indicated

that J.C. was removed because he suffered second-degree burns, prompting an investigation. The

State concedes that, although the notice was dated July 19, 2010, the envelope was postmarked

July 23, 2010, and Rodriguez and Sims had backdated the notice to July 19 even though they

prepared it after that date.

¶ 10 DCFS initiated an investigation of plaintiffs. 3 In addition, Child Link conducted a

licensing investigation of plaintiffs, but ultimately found no licensing violations.

3 DCFS eventually sent a letter to plaintiffs on October 7, 2010, indicating that their investigation of the report of suspected child abuse or neglect was determined to be "unfounded."

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¶ 11 Following J.C.'s removal, plaintiffs pursued an administrative appeal for his return.

Plaintiffs requested a clinical placement review and an emergency review. See 89 Ill. Adm. Code

337.30, amended at

(eff. Mar. 7, 2012). Reviewer Belinda White refused

plaintiffs' request for a separate emergency review.

¶ 12 The clinical placement review occurred on August 5, 2010. White issued her findings

and recommendation on August 12, 2010. White held that although plaintiffs received written

notice a few days after J.C. was removed, plaintiffs acknowledged that they were nevertheless

orally informed at the time of removal that he was being removed due to the burns he received

while in their care. White observed that plaintiffs had provided a caring home, but there were

concerns regarding the burn incident; plaintiffs should have taken him to the hospital and not

sought care from a neighbor, plaintiffs failed to timely inform Child Link of the injury, and they

should not have canceled the visit with his biological father without authorization. White

concluded that J.C. was at imminent risk of harm prior to removal. She determined that, as J.C.

had been moved on multiple occasions, he should remain with his paternal grandfather while his

biological father worked toward reunification. She recommended that if J.C. were to be moved

again, he should live with his relatives in Tennessee.

¶ 13 Following the clinical placement review, plaintiffs requested a service appeal on August

17, 2010. Plaintiffs also filed an emergency motion to remand to the clinical placement reviewer

in order to receive an emergency review. Administrative law judge Lola Fahler denied the

motion upon finding that when the change of placement of a child is challenged, the statutorily

provided procedure consisted of a clinical placement review followed by a service appeal, and

the child shall be placed in accordance with that decision while the appeal is pursued.

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¶ 14 The administrative hearing regarding plaintiffs' service appeal before Judge Fahler

occurred over several days spanning several months from December 2010 through July 2011.

Plaintiffs presented the testimony of several witnesses and presented numerous exhibits. Judge

Fahler issued her written recommendation on August 31, 2011. Judge Fahler found that plaintiffs

were initially a short-term placement for the minor as there were no relatives who were willing

or able to care for him, and when J.C.'s biological mother died, Rodriguez asked plaintiffs if they

were interested in adopting J.C. However, relatives of J.C.'s biological father then contacted

Rodriguez and expressed a desire to have J.C. placed with them, and J.C.'s father was released

from jail and began supervised visits with the minor.

¶ 15 With respect to incident in which J.C. was burned, Judge Fahler expressed concern that

plaintiffs did not contact Rodriguez on her cellular telephone or call Child Link's emergency

number to report the incident, they left a message about the incident on Saturday night on

Rodriguez's office telephone, they did not take him to the emergency room, and they canceled

the scheduled visit with his biological father the next morning. Judge Fahler found that after

Rodriguez visited J.C. in plaintiffs' home, she consulted with Sims and Martin-Harris, and it was

decided that J.C. would be removed pending investigation, and Lynn Benz was informed at the

hospital on July 19 that J.C. was being removed. Judge Fahler found that Rodriguez and Sims

falsely backdated the notice of change of placement to July 19, 2010.

¶ 16 In addition, Judge Fahler found that, in performing the clinical placement review, White

was not aware that J.C.'s grandfather was disabled, and that White was informed by Child Link's

chief executive officer that there was possible collusion by Child Link staff, but White did not

pursue these allegations before rendering her decision. Judge Fahler found White's testimony not

credible at the administrative hearing. Judge Fahler explained that the evidence showed that

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Child Link sent an email to plaintiffs in August 2010 indicating that Sims had recommended that

J.C. be returned. In August 2010, the case was transferred from Child Link to Volunteers of

America, and the new caseworker was not aware of Child Link's plan to return J.C. to plaintiffs.

Volunteers of America determined that it was not appropriate to move J.C. because he was living

with relatives. J.C.'s biological father planned to move to Tennessee, and he expressed a desire

for J.C. to be placed with relatives in Tennessee. J.C. began extended visits with Angela B., and

J.C. was placed there on March 18, 2011. Judge Fahler found that there were concerns with

J.C.'s placement with his grandfather and the grandfather's ex-wife because the sleeping

arrangements for J.C. were not appropriate, the home was owned by the ex-wife, and the

grandfather was disabled and unable to adopt J.C. on his own. Based on the foregoing, Judge

Fahler held that White's decision was not consistent with J.C.'s needs regarding safety, well-

being, and permanency. Judge Fahler recommended that J.C. be returned to plaintiffs.

¶ 17 Meanwhile, as plaintiffs' administrative case was proceeding, there was also an ongoing

juvenile court case involving the minor. 4 As stated, J.C. began visits with Angela B. in

November 2010, and on March 18, 2011, the juvenile court entered an order placing J.C. in

Angela B.'s home. J.C.'s biological father died from a drug overdose in July 2011. Thereafter,

Angela B. sought to adopt J.C. On September 30, 2011, the juvenile court entered orders

terminating the parental rights of J.C.'s biological parents and setting adoption as the permanency

goal.

¶ 18 With respect to plaintiffs' administrative proceedings, having received Judge Fahler's

recommendation, the Acting Director of DCFS, Jean Ortega-Piron, decided on October 14, 2011,

to remand the case in order to conduct an independent assessment of J.C.'s then-current best

4 Angela B. filed a motion to obtain guardianship of J.C. in the juvenile proceedings and plaintiffs moved to intervene in the proceedings, but the juvenile court denied both motions.

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interests as he had been living with Angela B. since March 2011. Thereafter, an independent

review was performed by the Juvenile Protective Association (JPA). The JPA reviewed the case

documentation and interviewed plaintiffs, Angela B., and others and issued a detailed report on

November 14, 2011. The report concluded that J.C. had formed a strong bond with Angela B.

and should remain with her. 5

¶ 19 In light of the JPA's assessment, Ortega-Piron issued a written final administrative

decision on November 21, 2011, finding that it was in J.C.'s current best interests to remain with

Angela B. in Tennessee, given that J.C. had been placed with Angela B. since March 18, 2011,

he had formed a strong attachment to her, Angela B. was committed to keeping him, and

considering his age and prior upheavals, it was critical that he be able to preserve and build on

his bond with Angela B.

¶ 20 Following Ortega-Piron's final determination, plaintiffs filed a complaint for

administrative review in the circuit court in December 2011. In their subsequently amended

complaint, plaintiffs asserted that the administrative proceedings violated their procedural due

process rights based on (1) removal of J.C. from his "pre-adoptive" foster parents without

advance notice when he was not in imminent risk of harm; (2) failure of DCFS to conduct an

emergency review of its decision to remove J.C.; (3) delays in the administrative proceedings in

the service appeal which failed to adhere to the timelines set forth in DCFS regulations; and (4)

failure of the clinical placement review, service appeal, and final DCFS decision to comply with

Illinois law. Plaintiffs also claimed that that Ortega-Piron's decision should be reversed as it was

against the manifest weight of the evidence and contained errors of law, and that DCFS should

be sanctioned for arguments it advanced in the service appeal that were legally erroneous. 5 The report noted, however, that the circumstances of J.C.'s removal from plaintiffs had posed an unjustified risk to his psychological well-being and could have been implemented in a different way to allow for a transition period.

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¶ 21 On January 17, 2013, the circuit court entered an order affirming the DCFS Director's

decision. The circuit court set forth a detailed statement of the facts and ultimately held that

plaintiffs' due process claims were moot. Further, plaintiffs had not established that they should

be reviewed pursuant to the public interest exception to the mootness doctrine because plaintiffs

had not made a clear showing that their case met the criteria for the exception. The court

indicated that J.C. had bonded with and was thriving with Angela B., with whom he had been

residing for two years, the court lacked the equitable power to make a placement decision, and

moving the minor at this point risked harming him.

¶ 22 Notwithstanding its mootness determination, the circuit court also held that plaintiffs

failed to establish that they had a protected liberty interest at stake, which was a necessary

component of their claimed due process violation. Even so, the court found that it was clear from

the record and transcripts that plaintiffs "had many opportunities to present evidence, cross-

examine witnesses, and inspect documents." The court noted that plaintiffs were "intensely

thorough" in presenting their case and no evidence supported that they were denied due process.

The court held that Ortega-Piron's decision was not clearly erroneous and that, regardless of any

procedural errors, the record "overwhelmingly demonstrates that it is in the best interests of J.C.

to remain in his current stable and loving environment." Regarding plaintiffs' request for

sanctions, the circuit court concluded that Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994)

was inapplicable because the rule only applied to certification of pleadings by an attorney and

did not apply to administrative proceedings.

¶ 23 Plaintiffs appeal from the circuit court's order. The parties did not dispute that in May

2013, the court entered a final adoption judgment in which Angela B. became J.C.'s adoptive

parent, and J.C.'s guardianship and wardship were terminated and the juvenile case was closed.

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¶ 24 II. ARGUMENT

¶ 25 A. ILLINOIS SUPREME COURT RULE 341

¶ 26 As an initial matter, the State asserts that plaintiffs' opening brief fails to comply with

Illinois Supreme Court Rule 341 (eff. Feb. 6, 2013) in several respects and this court should

therefore deny or limits its consideration of their appeal. The State contends that plaintiffs' brief

is not double-spaced, is in less than 12-point font, uses excessive footnotes, contains a selective

and argumentative statement of facts, and fails to properly cite the record in the argument

section. See Ill. S. Ct. R. 341(a), (b)(1), (h)(6)-(7) (eff. Feb. 6, 2013).

¶ 27 We note that plaintiffs' opening brief is 49 pages and it contains almost as many single-

spaced footnotes—48—in many of which plaintiffs make substantive arguments. The supreme

court rules provide that "[f]ootnotes are discouraged." Ill. S. Ct. R. 341(a) (eff. Feb. 6, 2013).

Further, "[s]ubstantive arguments may not be made in footnotes" and the court may strike them

from consideration. Technology Solutions Co. v. Northrop Grumman Corp.,

(2005). Plaintiffs' brief also appears to be less than double-spaced. We note that we

previously denied plaintiffs' motion to file a brief in excess of 75 pages with a separate statement

of facts that would not count toward the 50-page limit under Rule 341(b)(1). Clearly, had

plaintiffs incorporated these 48 single-spaced footnotes into the body of their 49-page brief, they

would have exceeded the 50-page limit. This leads us to conclude that plaintiffs were attempting

to avoid this court's ruling and the page limitation in Rule 341(b)(1) through the use of footnotes

and by failing to adhere to the double-spacing requirement. Technology Solutions,

. Additionally, plaintiffs' statement of facts occasionally contains improper argument.

Notwithstanding these deficiencies, we will address the issues presented on appeal as they

warrant further discussion and resolution. "If an appellant's brief violates the supreme court

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rules, this court has the authority to dismiss the appeal. [Citation.] However, Supreme Court Rule

341 is an admonishment to the parties, not a limitation on the jurisdiction of the reviewing court,

and the reviewing court has discretion in order to reach a just result." In re Jacorey S.,

. However, we "will disregard any inappropriate or unsupported material,

and any substantive arguments contained only in the footnotes." John Crane, Inc. v. Admiral

Insurance Co., 2013 IL App (1st) 1093240-B, ¶ 29.

¶ 28 B. MOOTNESS

¶ 29 On appeal, plaintiffs contend that their procedural due process rights were violated

because (1) in contravention of the applicable administrative rules, J.C. was removed from their

home without prior written notice or a determination that he was at imminent risk of harm, and

the evidence did not show that he was in imminent risk of harm, (2) plaintiffs were entitled to,

but were denied, an emergency review of the decision to remove him, (3) the discretion of the

clinical placement reviewer was so limited as to render the review a sham proceeding, and (4)

DCFS failed to adhere to the statutory time limits for service appeals, which extended the appeal

process for approximately three years. Plaintiffs assert that they had a constitutionally protected

liberty interest at stake in proceedings related to removal of a foster child and this liberty interest

arose under state statutes and Administrative Code provisions. Further, plaintiffs argue that the

DCFS Director's decision should be reversed as it was not based on the record.

¶ 30 Similar to its arguments below, the State contends that, with the exception of the

sanctions issue, plaintiffs' claims are moot because the minor's adoption has since been finalized

during the pendency of this appeal. Plaintiffs concede that the minor has been adopted and

cannot be returned to them. However, they assert that this court should review the merits of their

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appeal under the public interest exception to the doctrine of mootness. The State counters that the

public interest exception does not apply here to allow for this court's review.

¶ 31 "As a general rule, courts in Illinois do not decide moot questions, render advisory

opinions, or consider issues where the result will not be affected regardless of how those issues

are decided." In re Alfred H.H.,

(2009). Our supreme court has "consistently

held that '[a]n appeal is moot when it involves no actual controversy or the reviewing court

cannot grant the complaining party effectual relief.' " In re Marriage of Donald B.,

(quoting Steinbrecher v. Steinbrecher,

(2001)). When such

is the case, the court "will not review cases 'merely to establish a precedent or guide future

litigation.' "

(quoting Madison Park Bank v. Zagel,

(1982)). The court also

generally avoids issuing an advisory opinion when "a case is pending on appeal when the events

that render an issue moot occur."

Whether a claim is moot is an issue we review de novo on

appeal. Preferred Personnel Services, Inc. v. Meltzer, Purtill & Stelle, LLC,

(2009).

¶ 32 We agree with the circuit court and the State that, except for plaintiffs' claim for

sanctions, the issues presented in plaintiffs' appeal have been rendered moot by the finalization

of J.C.'s adoption. In the administrative appeal proceedings and in the circuit court, plaintiffs

sought to challenge the removal of J.C. and sought reversal of the various administrative

decisions against them in that regard. The parties agree that while this appeal was pending, J.C.'s

adoption by Angela B. was finalized. Given these circumstances, it would be impossible for this

court to grant plaintiffs effectual relief. In re Alfred H.H.,

. We find that the

issue has been rendered moot, and we decline to render an advisory opinion or render an opinion

merely to guide future litigation. In re Marriage of Donald B.,

.

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¶ 33 Having concluded that the appeal before us is moot, we must now consider whether the

public interest exception to the mootness doctrine applies here. "The public interest exception to

the mootness doctrine allows a court to consider an otherwise moot issue when (1) the question

presented is of a substantial public nature; (2) there is a need for an authoritative determination

for the future guidance of public officers; and (3) there is a likelihood of future recurrence of the

question." In re Marriage of Donald B.,

, ¶ 33. As the public interest exception

"is construed narrowly, *** a clear showing of each criterion is required to bring a case within its

terms." In re Adoption of Walgreen,

(1999).

¶ 34 Although plaintiffs strenuously argue that this case involves legal questions which impact

numerous other "pre-adoptive" foster parents, considering the lengthy and unique procedural

circumstances of this case, we disagree with this assertion. The crux of plaintiffs' argument is not

so much that the applicable administrative provisions and statutes themselves violate due

process, but that DCFS failed to comply with these provisions and thereby deprived plaintiffs,

specifically, of the proper notice and procedure to which they were entitled.

¶ 35 Our supreme court has directed that "when an opinion on a question of law cannot affect

the result as to the parties or controversy in the case before it, a court should not resolve the

question merely for the sake of setting a precedent to govern potential future cases." In re

Adoption of Walgreen,

. Indeed, "[t]his limitation is no mere technicality. The

existence of a real controversy is a prerequisite to the exercise of our jurisdiction."

"If all

that was required under this factor was that the opinion could be of value to future litigants, the

factor would be so broad as to virtually eliminate the notion of mootness." In re Alfred H.H.,

.

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¶ 36 For example, in In re Adoption of Walgreen,

, the Illinois Supreme

Court held that the issue of whether various provisions of the Adoption Act (750 ILCS 50/1 et

seq. (West 1992)) were unconstitutional was moot because the grandparents' adoption of their

grandchildren became finalized during the pendency of the appeal. Even though the issue (the

constitutionality of the standards measuring the biological mother's fitness) presented "a question

of substantial public interest," the court declined to review the constitutional issue under the

public interest exception because there was no need for an authoritative determination given that

the law was not in disarray and there was no conflicting precedent. In re Adoption of Walgreen,

. Because the adoption was finalized, the constitutionality of the standards

would "not be at issue again."

. Similar to the circumstances here, the Walgreen court

observed that "[t]he constitutionality of the fitness provisions may still arise in other adoption

cases. There is no reason to believe, however, that the question cannot be fully litigated by the

affected parties there. The long and complex history of this case demonstrates that this is not the

sort of dispute which is, by its nature, too short in duration to be fully litigated prior to its

cessation."

See also In re Alfred H.H.,

(holding that the public interest

exception to mootness did not apply because the case did not involve a situation where the law

was in disarray or there was conflicting precedent).

¶ 37 Accordingly, we do not believe that this case falls within the narrow confines of the

public interest exception to mootness. Plaintiffs have failed to show "that there is a 'need to

make an authoritative determination for future guidance of public officers.' " In re Alfred H.H.,

-58 (quoting In re Adoption of Walgreen,

). Additionally, with

respect plaintiffs' challenge that the Director's final decision was clearly erroneous, our supreme

court has directed that "case-specific inquiries, such as sufficiency of the evidence, do not

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present the kinds of broad public issues required for review under the public interest exception."

In re Rita P.,

.

¶ 38 Moreover, even if we were to hold that the appeal was not moot or that the strict criteria

for the public interest exception were met, we would nevertheless conclude that plaintiffs have

failed to establish that they have a constitutionally protected liberty interest at stake. Plaintiffs

cite to Illinois statutes and the Administrative Code in support of their argument that they had a

constitutionally protected liberty interest. "However, for a statute to grant a person a protected

liberty interest, the person must have a legitimate claim of entitlement to the liberty interest." In

re Adoption of C.D.,

(2000). In fact, Illinois case law makes clear that

such a liberty interest does not exist in the present circumstances. "[S]ince Illinois law does not

create an expectation of a continued relationship, foster parents have no constitutionally

protected liberty interest in the continued custody of their charges." Johnson v. Burnett,

(1989). "The role of the foster parent, as envisioned by Illinois law, is that of a

temporary way station on the road of a child's life until the difficulties at home can be

straightened out."

. Although parents have a fundamental liberty interest in the "care,

custody, and management" of their child, "[f]oster parents do not share this liberty interest in the

children for whom they care." In re A.H.,

, 423 (2001). Notwithstanding plaintiffs'

citation to cases from foreign jurisdictions, which are not controlling here, plaintiffs have failed

to demonstrate that Illinois law grants foster parents a liberty interest in a continued relationship

with a foster child under the present circumstances.

¶ 39 In ruling, we observe that a failure to provide timely notice to foster parents when

statutorily required may be deemed harmless, such as where the foster parent waives the issue or

otherwise appears and participates in the proceedings. In re A.H., 195 Ill. 2d at 424. In A.H., the

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guardian ad litem made an oral motion for removal of the foster child from the foster parents,

but our supreme court held that there was no due process violation because the foster parents

were not "necessary parties" entitled to notice of juvenile court proceedings under the Juvenile

Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 1998)). In re A.H., 195 Ill. 2d at 423-24.

Further, although the foster parent was statutorily entitled to proper notice, the failure to provide

it was harmless because the foster parent waived the issue when she failed to object and then

appeared the next day at the hearing regarding removal of the child. Id. at 424.

¶ 40 Having reviewed the voluminous record in this case, we agree with the circuit court that

plaintiffs were afforded sufficient procedural safeguards throughout the administrative and

circuit court proceedings. Although plaintiffs did not receive written notice until a few days after

J.C. was removed from their home, plaintiffs nevertheless were given oral notice that J.C. was

being removed when the DCFS worker informed Lynn Benz of this at the hospital on the day of

removal. Further, although plaintiffs' requests for an emergency review were denied, plaintiffs

had the opportunity to challenge the decision to remove J.C. soon after it was made during the

clinical placement review, again during the administrative service appeal hearing, and in the

circuit court proceedings. Plaintiffs had the opportunity to present a plethora of testimonial and

documentary evidence, cross-examine witnesses, and present argument in support of their

claims.

¶ 41 Based on this record, plaintiffs have not demonstrated that they had a protected liberty

interest or that their procedural due process rights were violated.

¶ 42 C. RULE 137 SANCTIONS

¶ 43 Plaintiffs also assert that they were entitled to sanctions against DCFS pursuant to Illinois

Supreme Court Rule 137. Plaintiffs assert that during the service appeal, DCFS advanced in

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writing an argument that was legally erroneous and lacked a reasonable basis, i.e., that plaintiffs

were not entitled to an emergency review. The State argues that Rule 137 sanctions do not apply

to an improper filing in administrative review proceedings and sanctions were not warranted as

DCFS's argument was not unreasonable.

¶ 44 Rule 137 provides that "every pleading submitted by a party represented by an attorney

[must] be signed by that attorney, the signature constituting a certification that the attorney has

read the pleading and that to his knowledge, the pleading is well grounded in fact and is

warranted by law." Kensington's Wine Auctioneers & Brokers, Inc. v. John Hart Fine Wine, Ltd.

(2009) (citing Ill. S. Ct. R. 137 (eff. Feb. 1, 1994)). The rule aims to

prevent parties from abusing the judicial process by filing vexatious or harassing actions lacking

legal or factual support. Reyes v. Compass Health Care Plans,

(1993). "[T]he trial court must employ an objective standard and determine what was reasonable

at the time the party filed its pleading." Kensington's Wine Auctioneers,

.

The rule applies only to pleadings, motions, and other papers filed by a litigant.

. As

such, "it does not authorize sanctions for all violations of court rules and acts of misconduct."

The party requesting sanctions bears the burden of showing that sanctions are warranted. Reyes,

. A circuit court's decision whether to impose sanctions pursuant to Rule

137 is reviewed for an abuse of discretion. Spiegel v. Hollywood Towers Condominium Ass'n,

, 1001 (1996). An abuse of discretion occurs where the trial court "acted

arbitrarily, without employing conscientious judgment, or whether, in view of all the

circumstances, the court exceeded the bounds of reason and ignored recognized principles of law

so that substantial prejudice resulted." State Farm Fire & Casualty Co. v. Leverton,

(2000). Where the decision requires interpretation of a supreme court rule, it

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involves a question of law subject to de novo review. People v. Stefanski,

(2007).

¶ 45 We conclude that the circuit court did not abuse its discretion in rejecting plaintiffs'

request for sanctions. Supreme Court Rule 1 limits the applicability of the supreme court rules

"to both civil and criminal proceedings. The rules on proceedings in the trial court, together with

the Civil Practice Law ***, shall govern all proceedings in the trial court ***." Ill. S. Ct. R. 1

(eff. July 1, 1982). See Rodriguez v. Sheriff's Merit Comm'n,

(2006)

("supreme court rules, together with article II of the Code of Civil Procedure, i.e., the Civil

Practice Law (735 ILCS 5/1-101(b) (West 2002)), apply to all proceedings in the trial court").

With respect to circuit court review of administrative proceedings, the supreme court dictates

that litigation commences and parties become "litigants" within the meaning of the rules when a

plaintiff files a complaint for administrative review in the circuit court. Rodriguez, 218 Ill. 2dat

354. "Prior to plaintiff filing her complaint, no litigation existed, hence no litigants existed and,

hence, supreme court rules did not yet apply."

¶ 46 In their petition for rehearing, the appellants reassert their position that the third

paragraph of Illinois Supreme Court Rule 137 provides a vehicle to claim sanctions for a "false

argument" at the administrative level. Appellants cite no authority for this position and we do not

find it persuasive. 6 Rule 137(c) provides:

"(c) Applicability to State Entities and Review of Administrative Determinations.

This rule shall apply to the State of Illinois or any agency of the State in the same

manner as any other party. Furthermore, where the litigation involves review of a

determination of an administrative agency, the court may include in its award for

6 We note that Rule 137 was amended on June 14, 2013, effective July 1, 2013, to provide paragraph headings, but is otherwise substantively the same for our purposes concerning paragraph (c).

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expenses an amount to compensate a party for costs actually incurred by that party in

contesting on the administrative level an allegation or denial made by the State

without reasonable cause and found to be untrue." Ill. S. Ct. R. 137(c) (eff. July 1,

2013).

¶ 47 Here, the trial court found, and we agree, that this provision does not provide a vehicle

for a sanction order that is independent of the proceedings in the trial court. Rather, this

provision allows that a sanction order for an improper court filing may also include expenses

incurred at the administrative level.

¶ 48 However, it must also be noted that while this paragraph does extend the reach of Rule

137 sanctions to the administrative level, that reach is much more limited. As noted, Rule 137

(a) requires an attorney's signature certifying that a pleading is well grounded in fact and

warranted by law. Kensington's Wine Auctioneers & Brokers,

. The

provision relied upon by appellants here, now Rule 137(c), contains markedly different language.

Costs may be recovered thereunder for "contesting on the administrative level an allegation or

denial made by the State without reasonable cause and found to be untrue." (Emphasis added.)

Ill. S. Ct. R. 137(c) (eff. July 1, 2013). This relates to a factual allegation or the denial of a

factual allegation. An allegation is defined as a formal statement of a factual matter. See Black's

Law Dictionary 74 (7th ed. 1999) (defining "allegation" as "[s]omething *** asserted as a matter

of fact, esp. in a legal pleading; a party's formal statement of a factual matter as being true or

provable, without its having yet been proved").

¶ 49 In contrast, the appellant's request for sanctions relates to an allegedly legally erroneous

argument, that they were not entitled under the law to an emergency review, as opposed to a

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false statement of fact. They are claiming that the argument was not warranted at law, and as

such, the claim does not fall within the ambit of Rule 137(c).

¶ 50 To the extent that plaintiffs argue that DCFS should be sanctioned for positions taken

during the proceedings in the circuit court, we similarly find that sanctions are not warranted.

DCFS' arguments were not contrary to law and were reasonable under the circumstances.

¶ 51 Section 337.30 of Title 89 of the Illinois Administrative Code provides that, "[w]hen the

issue is the removal of a child from the home of a foster family or relative caregiver, the service

appeal process for the Department of Children and Family Services consists of a fair hearing

after a clinical placement review of the decision to remove the child pursuant to subsection (c)."

89 Ill. Adm. Code 337.30, amended at

, 4400-01 (eff. Mar. 7, 2012). Further,

this section specifies that an emergency review "is not available to any party when the issue is

removal or change of placement of a child." (Emphasis added.) 89 Ill. Adm. Code 337.30,

amended at

, 4399 (eff. Mar. 7, 2012). Section 337.30(c) provides that DCFS

"or provider agency may immediately remove a child from a foster family *** without timely

notice to the family, when the child is determined to be at imminent risk of harm in the current

placement." 89 Ill. Adm. Code 337.30(c)(5), amended at

, 4402 (eff. Mar. 7,

2012). Further, this section also directs that when a party appeals from the final decision of a

clinical placement review, "the child shall be placed in accordance with that decision during the

pendency of the appeal." 89 Ill. Adm. Code 337.30(c)(8), amended at

, 4402

(eff. Mar. 7, 2012). Thus, in plaintiffs' case, DCFS was permitted to immediately remove J.C.

without timely notice based on its determination that he was at imminent risk of harm, and the

proper procedure to challenge the removal was a clinical placement review followed by an

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appeal from that decision if necessary, while J.C. remained in the new placement. As discussed,

this is what occurred here. 7

¶ 52 Additionally, section 337.30(b) specifies that only two issues can be reviewed in an

emergency review, only one of which is relevant here: where action was taken by DCFS or a

provider agency without timely notice because the child was determined to be at imminent risk

of harm. 89 Ill. Adm. Code 337.30(b)(1), (2), amended at

, 4900 (eff. Mar. 7,

2012). However, the language of section 337.30(b) further provides that, in such a situation, the

availability of an emergency review is limited to "any issue, except placement." (Emphasis

added.)

As "[a] party may request an emergency review within 10 calendar days after the

date of appeal on any issue, except placement" (89 Ill. Adm. Code 337.30(b)(1), amended at

, 4400 (eff. Mar. 7, 2012)), plaintiffs' request for an emergency review was

properly denied in this case because their challenge was based on the removal and change in

placement of J.C. Thus, pursuant to section 337.30(b)(1), an emergency review was not

available to plaintiffs. The fact that no emergency review was available to them is buttressed by

language set forth earlier in section 337.30, i.e., "emergency review is not available to any party

when the issue is removal or change of placement of a child." 89 Ill. Adm. Code 337.30,

amended at

, 4399 (eff. Mar. 7, 2012).

¶ 53 Based on the foregoing, Rule 137 sanctions were not applicable in this case. Further,

DCFS had a proper legal basis for opposing plaintiffs' requests for an emergency review and for

7 We refer to the most recent and current version of section 337.30, which became effective on March 7, 2012. However, we note that the prior version also provided for a service appeal process when the issue was removal or placement of a child, and further provided that an emergency review was not available when the issue was removal or child of placement of a child. See 89 Ill. Adm. Code 337.30, amended at

, 6254 (eff. June 1, 2002). The prior version did not contain the language set forth in the current sections 337.30(c)(5) or (8).

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its assertions that plaintiffs' due process rights were not violated in failing to be granted one. The

trial court did not abuse its discretion in refusing to sanction DCFS.

¶ 54 III. CONCLUSION

¶ 55 For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 56 Affirmed.

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