court order whether in the rule to show cause at the evidentiary hearing or in the contempt order itself that requires the department to remove minors from a foster home upon the positive drug test of a foster parent it is doubtful that the february twenty fourth teen standing order regarding foster parent drug drops has any applicability here at all because that order says that in every initial case the drug graft should be conducted but this was not an initial case because the children had already in place with the grandparents six months before the standing order was issued and any of that even if a standing order apply here it does not say that minors must be removed if there's a positive drug test in fact it does not address at all what steps must be taken if there is a positive drug test by one of the foster parents thus the standing order can that has to develop basis for contempt finding here and the assistant below argued that common sense could be the basis for the contempt finding but obviously parties cannot be held the content based on someone's subjective notion of what common sense is it has to be based on a court order the juvenile court also referred in the rule to show cause to certain unspecified meetings that she had with the department regarding foster parent drug drops and in the rules shall cause the court stated that she had allegedly conveyed at those meetings that  would i mean if the court could show that specific department employees and then those employees themselves were held in contempt knew of such an order then i think you know you know i'm telling you our conversation policy good ideas maybe that's a good idea correct around it but what difference would it make if there were such conversation i mean that's certainly our position the court characterized those comments as direct orders and the rule to show cause of though that evidentiary hearing she never mention those meetings again instead focus shifted to the standing order that had been issued in february twenty fourth team and there was no evidence put on by the state's attorney or anyone else about any such meeting so that any orders  made at the meetings in fact the one witness that was questioned about those meetings tasveer the social case worker for the movement social services deny that any such discussions have been had in his presence  of things that could even have been appealed if for instance the department but in particular case that removal would not be the appropriate action for example if you had her might had a prescription which is why they tested positive or it might have been an isolated occurrence acting director and the guardianship administrator testified that he either one of them was even aware of the standing order either at the time of the removal of the challenge at the time of the positive drug test or at the time the removal of children the children were removed for another reason but it was before the court issued the rule to show cause it was before the evidentiary hearing the children were removed at the end of may and will show cause of the issue to the end of july and the adventure hearing on the will show cause was held in early september by then the children had been removed for a long time and both the acting director and the guardianship ministry testify they were not aware of the standing order even if it could be construed to require removal at the time of the positive drug tests or prior to the removal of the children for other the court did believe that she had made comments which she viewed as workers at these meetings about removing the children you would think that she would have told the social worker when he brought her attention that the grandfather tested positive for drugs that she wanted children removed but she didn't do said she just said file report found a letter and that she would you know revisit the matter and then nothing happened for four months until two months after the children had already been removed suddenly she was fantasia's will show cause claiming that the in time that there was a positive drug test one would think that it will second a meeting when it was discussed that she would have asked a judge to order a removal of the children but she did not do so and then now there enthusiastically arguing that the department should sanction is just to motivate responded to comply with the earlier order but even if there had been an earlier order requiring removal of the children the children had been removed at that time so there was really nothing to be done at that point  let me start by saying no one's enthusiastic about this case or any of the slime cases i've traveled personally on county on these matters we've discussed extensively with with the folks involved no one's enthusiastic about any of this i want to address one thing first i saw just disconnect sort of nodding along with with the argument that council made this morning  in this case on the rule to show cause part of the court's order related to imposing some provision purge provisions to get the trial judge i'm sorry to get d c fs to comply with orders that the trial judge previously issue that's what these perth provisions are all about now this came up previously  their line troops were they aware of this order at the january fifteenth oral argument now our counsel represented to this court in response to a question at five o five and five twenty five of the oral argument record that and justice harris will probably remember this just sold a white pushback and said well wait a minute this blanket order whatever it is it didn't say that you have to remove the children right and counsel said judge there is no only other logical interpretation everyone knows quote unquote everyone knows what's going on for a million county when someone tests positive for drugs in this case in these cases the judge wants us to root the children everyone knows it in fact again at nine zero one and nine thirty of the record counsel represented to this court who's now representing the acting former acting director of the c f s in response to a back and forth between justice holder white and justice turner when justice turner pushed back and said no no wait a minute that's not what the order says you're sort of liberally construing that and it could mean a couple of things just as here is followed up on that the response again your honor is the only logical interpretation everyone there knows as you know what's going on here and justice here is push back further and says well wait a second if someone tested positive for illicit drugs the c f s would certainly remove the child immediately and counsel said well if they tested positive for cannabis once although no you could never know that from a drug test how often they they used the drug but he further said and it might be a different  story if the person was a steri steady heraldry and this is sort of the backdrop your honor for why the judge in this case is similar to the l r case was doing what it's doing as a last resort and i want to address those things up front so the court can have sort of a broader context of the order that's issued in this case piece of the that first argument that d c fs makes in this case the order wasn't to have this specific child moved in this case in fact that's part of the problem here in vermillion county is that the broadness of the orders this was a broader order this was an order that said something akin to you have to be here at eight thirty rather than nine o'clock for a nine o'clock argument case we decide to start at you want to whole other state agencies yet you actually have workers that somebody look at precisely and i think the brilliant county judge in this case agrees with you your honor  that dovetails nicely to my opening which i had to jettison the last one i worked hard on so i'm glad to get back to it which is there was no contempt him pose in this case there was no full adjudication of contempt that's why there's no jurisdiction here  fact the court recognized that the rule show cause hearing which was you know what i have conducted it differently maybe but in these things don't happen in a vacuum these contempt proceedings happen over a period of time where the court reaches a crescendo of frustration because someone's not complying with an order that to use his words the only logical interpretation of which is that they have to remove these kids when someone test positive for  steroids the court brings the men questions and says i know what the law is related to fiduciary duty as an agency is which is that you're responsible for this agency the buck stops with you and so you're responsible for the court's orders but i recognize you have testified here today at this rule show cause hearing that you're the director and it would be physically impossible for you to hear and understanding comply with every order you've got tens of thousands of these orders issued on a on a yearly basis so what the court did was said now i'm going to make a purge provision i'm going to let you see this with your own eyes and hear it with your own ears and then you can comply with it instead of complying which they are obligated to do by law they construed i argue misconstrued this as an injunction and taken in a lack a tory appeal and with real seventy one in country mutual versus hilltop wh party can simply ignore the order this is regardless of the merits of the order in l r this court thoughtfully considered that case and determined that as a sort of procedural mechanism this this blanket nature of the order is improper  the sede except that i'm certain the court accepts that but that doesn't mean just because it's it was technically improper that they were permitted to ignore it now as an aside i'd say as in the last case  s has the burdens in this case and it was their burden to make that order part of the record even at the trial court and they didn't do it and they had plenty of time to do it leading up to this case i agree with counsel that standing  order had nothing to do with this case because the order that the court was finding them in contempt for in this case was the order that they remove children when someone tests positive for illicit drugs a foster parent it and that that order epona to a nine to their brief doesn't say anything about that it's not part of this case it's i think that classic example of a red herring it's utterly meaningless the fact that they used it at all at the at below was simply to demonstrate what he demonstrated at oral argument in l r which was this is all part of the broader context of this the court issued this order they complained about that order this court considered it both parties made vigorous arguments related to it and this court rendered the judgment we have no problem with that the trial court accepts it in fact i've provided a flow chart in light of that case for the trial judge below to be provided by the state's attorney so that these things can proceed in the manner they should but the question here has nothing to do with that the question is was there an order out there that everyone was aware of that these children were to be removed when  foster parent test positive for illicit drugs and the question unequivocally is yes there was an order and they knew it and it doesn't have to be in writing it doesn't have to be made part of the documentary should it be if i were the yes and this is unlike the this sort of blanket order in a large because that according to this court touched on the statutory provisions under the juvenile court act this is something different of course in illinois is that as your honor knows it in law in equity and i would say that this is a case where if i felt as in this case and this is why i pointed out there were counsels response to justice turner at the last oral argument if i felt like there was a shred of evidence or a a chance in the world that one of these kids was going to be left with a steady heroin user i would take all these folks aside and do exactly what the traffic or to in this case which is i'd say everyone here involved just so you know i want these kids these foster parents removed from these folks if they test positive for illicit drugs period i have the authority to do that i'm putting you on notice that's what i want let's assume your honor the propriety of that order is not good the court couldn't do it i'll concede that just this we know the power of the courts and prisoners the interfere in the administration of the department of corrections that's right you might think we know very but that's not the way it works in anyone who's ever  also push back on just a little bit and the reason that you that you cared so much when you were a juvenile judge was because even in criminal cases where you're dealing with people's lives or liberty interests this is something different  something i don't think i would appreciate it as much before i had a daughter but it's different and if there is something that you can do as a trial judge you push as hard as you can and i would say objectively speaking what happened here is pretty fair indeed they haven't done anything yet they haven't been forced to do anything by the trial judge and that goes back to the point that i hope i eventually get to make which is there's no jurisdiction here that as an aside i'd like to say i'd like to attempt to rehabilitate that if it's necessary i hope it's not to rehabilitate the state's attorney's standing with this court we pushed back on that a little bit in our motion to strike saying look that's not well taken our state's attorneys an elected official we can't have a represented from the attorney general's office describing his filings as frivolous it's not it's not good policy  they responded with a three page motion in which they referred to it i would say quadrupling down on the frivolous nature of our motion indeed using the word frivolous seven times and that motion on october twenty seventh before the c f s even filed a brief in this case the state's attorney sent an e mail as a professional courtesy to counsel stating that we had just been dismissed in a case called in re contempt of off it's an unpublished decision not pointing this out for the merits of justice connect concurred that disposition we in that case made essentially personally i made the same argument that counsel makes in this case related to contempt finding of the state's attorney we were dismissed him acting as i sent a copy of that case to say it was just to put you on notice this is probably what i'm going to be arguing in this case to use a baseball analogy it's spring training time after all  we're simply advocating for the position that we get the same calls from the batters box as we got from the mound and i know obviously this is a different panel of judges and you could of course free to call its own strike zone but it certainly takes our argument out of the frivolous category obviously that case is not a published opinion but to the extent that our arguments are described as frivolous it is i think in the case and if i can digress for a moment the reason why i continue to use the same argument in a motion and then cited it forbade him in our motion in our brief in this case is because i essentially lifted it from the presiding justice hopes disposition in up off it and i felt in fidelity to this court that that i have an obligation to put that forward and make those same arguments it's not a substantive argument  sanction on civil contempt and here's the interesting part about that the court said the reason it's so important that you all three zero four a five when whenever a contempt is being contested whether the substance of that is valid or not is because if you use some other rule it rynders three zero for a five quote unquote superfluous it swallows the rule if there's another rule available counsel has to use it that's the point now any order issued by the court appoint the court to and i used to be article from december two thousand and fourteen entitled stop three o seven a want to peel's not for inju know just as harris knows the import and the importance of these arguments having served as a member of the editorial board for the ice v a this is where in cases like this it can become important where there's not there's not case law on point these things can be very instructive i reached out to the article author of this article and i asked i said have you seen three o seven a one used in the contempt context and her response was no in fact the last paragraph of that article this follows will if your order is not appealable under all the rules governing appeals remember that it might be appealable under rule three hundred seventy one but here's the key but where it is appealable under another rule you have to use that rule here it's three zero four eight five three zero four b states as follows the following orders are appeal without a finding required for paragraph a and of course that's judgments that don't suppose t he entire case by an order finding a person or entity in contempt of zero which imposes a monetary or penalty or other penalty so one of course found to be injunctions stays of litigation orders compelling arbitration gag orders but what if he is what they have been found and the fact that that case is exist that say three o seven a one doesn't apply proves that the way they define real seventy one can't be the way the supreme court defines it they include orders compelling mediation that compel someone to do something they otherwise wouldn't want to do and importantly discovery orders and why this is important because those must be tested with a contempt citation which is a i just asked this court to analyze carefully that jurisdictional issue because at the end of the day just like in country mutual they're required all the court courts order they didn't come to the court they didn't try to comply they said we're just not going to do this importantly if the the order in the rule to show cause is not as counsel describes in this case it says pending and and the case is pending on that day were easily ascertainable that was september nineteenth those are easily ascertainable it's not that broad it's his burden to show that pending doesn't mean pending in this regard it's not ours they could have attempted and if they didn't comply to the extent the court one of them complied with those orders they could have come back and said this is burdensome the court would have imposed the same ssion and then we'd be here on the merits and i think that's what the court requires in valencia and gotten if there are no other questions  needs to be thrown at the top and i think a little background would be helpful to understand the context here what had originally happened was that in december twenty third teen a particular foster parent showed up to juvenile court apparently under the influence of some sort of substance the judge asked her to take a test she really didn't sell and tested positive for illegal drugs so from that point on the judge started imposing a blanket rule first in december in january she would issue identical orders and separate cases we have killed from thirteen of those in this court reversed them recently in our find that the court did not have a blanket rule requiring that we test off foster parents within twenty four hours of placing the children that she could only required if there was some reason to believe that those particular foster parents were using illegal drugs that in february she issued the standing order which both the l r in this case the state's attorneys fought hard for this court not to see that standing order i don't know why everyone is practicing down in juvenile court in danville knows that it twenty drug tests because we don't openly defy court orders we either comply with them or we appeal or both and in that particular case even though the appeals were merely because the capable of repetition but evading review exception applied this court reversed those thirty orders even though we had complied and done the drug test here that standing order and it's funny council in our case was insisting that there is no blanket rule that there is no standing order that the judge only does it in particular cases when the facts  and that was totally untrue i have to try and defend the blanket rule but this anymore definitely exists we've attached to our grief and we ask you to look at it if there's any doubt about its authenticity feel free to contact the juvenile court and ask  if they test positive so because of that when the first foster parent tested positive for marijuana f p the grandmother in this case the social worker asked the judge ok we have a positive test what would you like us to do and she would not an she had told the department repeatedly in meetings and that would be caseworkers not that acting director in the guardianship administrator they may have known but the but the people that were held in contempt didn't know if she had told them that that was her strong desire wouldn't she have ordered it have repeated that she did nothing so if she had ordered us to remove the children we either would have done it or we would have appealed inside the state as we did here we could not going to stay away from the juvenile court but we did get one from this court and that's why we haven't complied with either one of these injunctions either to conduct an audit or to attend five court hearings in the course of a month so i do take umbrage to the notion that we do not respect court orders and that we openly defy court orders and as far the jurisdictional issue we acknowledge that in a normal content case where there's a proper purge provision that either you comply with the purge provision which is obey the earlier issued order and don't appeal because no sanctions are imposed or you just because charge perhaps because it would have been impossible at that point because the children had already been removed months earlier instead she said conduct this audit which has nothing to do with removing children or if you don't choose to do that then you can talk with the five hearings it was pick your side of and that umbrage is not directed at us as council it is directed at the entities involved this should be resolved this reminds me of a marriage case where we'll have mediation and the parties on